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471
NOTES
THE INCOMPLETE LOOM:
EXPLORING THE CHECKERED PAST AND PRESENT OF
AMERICAN INDIAN SOVEREIGNTY
Harry S. Jackson III*
It has been said that “the Indian Wars never ceased, they only
changed venue.” We are still fighting. We are fighting in courts, we
are fighting in Congress—we are still fighting. And probably we’ll
always fight, or else we’ll really be exterminated, through both acts
of aggression or apathy.1
Rev. Dr. John R. Norwood
Kelekpethakomaxkw
(Smiling Thunderbear)
I. INTRODUCTION .................................................................................. 472 II. HISTORICAL AND LEGAL DEVELOPMENT OF THE BUREAU OF
INDIAN AFFAIRS FEDERAL ACKNOWLEDGMENT PROCESS ............... 475 A. Historical Development of the Federal
Acknowledgment Process ................................................. 476 B. The Current Federal Acknowledgment Process .............. 479 C. Legal Development of the Federal Recognition
Process ............................................................................... 482 i. The Marshall Decisions (1823-1835) .......................... 482 ii. After Marshall ............................................................. 485 iii. Advocating Toward Sovereignty ................................. 488
III. A SECOND PATH TO ACKNOWLEDGMENT - FEDERAL
ACKNOWLEDGMENT BY THE COURTS ............................................... 490 A. The Montoya Decision ....................................................... 491
* Research Editor, Rutgers Law Review. J.D. Candidate, Rutgers School of
Law—Newark, 2012; B.A., Economics, Wagner College, 2009. I would like to thank the
Rutgers Law Review Editors and Staff for all of their hard work on this Note. I would
also like to thank my family and friends for all their love, support, and guidance
through the years. Wanishi–Lenape for “Thank You.”
1. Interview with the Reverend Doctor John Norwood, Nanticoke Lenni-Lenape
Tribal Delegate to the Nat’l Cong. of Am. Indians, in Moorestown, N.J. (Mar. 15, 2011)
[hereinafter Norwood Interview].
472 RUTGERS LAW REVIEW [Vol. 64:2
B. Montoya in Action ............................................................. 492 C. Deferral to the Federal Acknowledgment Process .......... 494 D. The Revival of Montoya – The Shinnecock
Breakthrough .................................................................... 498 IV. THE NANTICOKE LENNI-LENAPE TRIBAL NATION.......................... 500
A. Brief History ...................................................................... 500 B. Challenges Facing the Nanticoke Lenni-Lenape
Today .................................................................................. 504 C. Applying the Montoya Standard to the Nanticoke
Lenni-Lenape..................................................................... 506 V. IMPROVING THE CURRENT FEDERAL ACKNOWLEDGMENT
PROCESS .......................................................................................... 507 A. Policy Changes Currently Under Review by the BIA ..... 508 B. Recommendations to the Executive Branch and BIA ..... 509 C. Recommendations to the Judiciary .................................. 512
I. INTRODUCTION
For decades, the Eastern Pequot Tribal Nation eagerly awaited
the status of its federal recognition petition filed with the Bureau of
Indian Affairs (“BIA”). Filing their petition in 1978, the Eastern
Pequots sought affirmation of their sovereign status by the United
States government.2 Other American Indian tribes in the state of
Connecticut, such as the Mohegans and Mashantucket Pequots, had
already joined the rolls of federally recognized tribes.3 To meet the
criteria established by the BIA for federal recognition,4 the Eastern
Pequots’ petition consisted of historical records tracking their tribal
history, their standing in the community, and their governing
structure within the tribe. Federal recognition was important to the
Eastern Pequots because recognized tribes enjoy “almost exclusive
access to about $4 billion in funding for health, education, and other
social programs provided by the federal government.”5 Because
federally recognized tribes are regarded as sovereign entities, tribal
lands are exempt “from most state and local laws and regulations—
including, where applicable, laws regulating gambling.”6
Due to this wrinkle, many outside, non-Pequot investors, looking
2. Rick Green & Jesse Hamilton, No Doubts: Indians Lose; Tribes Stunned but
Defiant; Casino Opponents Praise Denial of Recognition, HARTFORD COURANT, Oct. 13,
2005, at A1.
3. Id.
4. See infra Part II.b.
5. U.S. GOV’T ACCOUNTABILITY OFFICE, GAO-02-49, INDIAN ISSUES:
IMPROVEMENTS NEEDED IN TRIBAL RECOGNITION PROCESS 1 (2001), available at
http://www.ncai.org/ncai/resource/documents/governance/gao-02-49.pdf [hereinafter
INDIAN ISSUES].
6. Id.
2012] AMERICAN INDIAN SOVEREIGNTY 473
to open a new casino in Connecticut, began funneling money to the
tribe to aid it in its quest for recognition.7 In 2002, after waiting
twenty-four years, the Eastern Pequots were granted their long-
awaited federal recognition by meeting the requirements of the BIA.8
Upon recognition, the BIA combined the Eastern Pequots with a
separate tribal faction, the Paucatucks, to form the “historical
Eastern Pequot tribe” and recognized them as one entity, stating that
both factions had descended from the same tribe.9 By allying
themselves with the casino industry, however, the tribe drew the ire
of the most powerful figures in the State of Connecticut, including
various citizens’ groups, the State Attorney General, and the
Governor.10 Looking to prevent another American Indian11 casino in
the state, Connecticut rejected the existence of the tribe and
challenged its federal recognition, though historical documents
showed that members of the tribe had lived in Connecticut on
7. See, e.g., Rick Green, Angry Trump Plays the Lawsuit Card; Claims Tribe,
Investors 'Unfairly' Shut Him Out of Potential Casino Role, HARTFORD COURANT, May
29, 2003, at A1 (reporting that Donald Trump purportedly gave more than ten million
dollars to the Paucatuck Eastern Pequots in exchange for a role in developing a casino
with the tribe if the tribe was federally recognized).
8. In the initial article reporting the tribal recognition, the Hartford Courant
mentioned the casino issue. The opening sentence of this historic announcement read:
“At least one more gambling casino for Connecticut became a near certainty Monday
when the federal Bureau of Indian Affairs granted final recognition to a single
‘historical Eastern Pequot Tribe.’” Rick Green & William Weir, A Single Tribe; and
Another Casino Could Follow, HARTFORD COURANT, June 25, 2002, at A1. As the
newspaper with the largest circulation within the State of Connecticut, it can be
argued that the Hartford Courant helped to fuel the antirecognition factions within
Connecticut by focusing its coverage on fighting the building of a casino, rather than
reporting on the benefits of a federally recognized tribe within the community.
9. Rick Green, State Denies Existence of Tribe, HARTFORD COURANT, Sept. 27,
2002, at B1.
10. Rick Green, Anti-Casino Forces Meet; State, Local Leaders Vow to Keep
Fighting Tribal Recognition, HARTFORD COURANT, July 3, 2002, at B1; see also Jeff
Benedict, Editorial, Praise the Governor for Joining the Casino Fight, HARTFORD
COURANT, Sept. 30, 2002, at A7 (noting that Governor John G. Rowland’s opposition to
further casino expansion in Connecticut is a dramatic shift from his “longstanding
position of neutrality toward tribal recognition and casino[s]”).
11. There is much disagreement among scholars about the proper terminology for
groups that identify as “American Indian.” In various Supreme Court opinions,
congressional findings, treaties, and laws, the terms “American Indian,” “Indian,”
“Native American,” and “native” are used interchangeably to refer to the indigenous
populations of the United States. Unfortunately, terms such as “Native American”
confuse and muddy the distinctions between tribes and also can include natives of
Hawaii, Eskimos, and Aleuts—which are not discussed in this Note. See DAVID E.
WILKINS, AMERICAN INDIAN SOVEREIGNTY AND THE U.S. SUPREME COURT: THE
MASKING OF JUSTICE, at xi (1997). Canadian and Alaskan indigenous groups use the
phrase “First Nations”; however, this term has never gained traction in the United
States. Id.
474 RUTGERS LAW REVIEW [Vol. 64:2
reservations for over three centuries.12 Facing enormous political
pressure, the BIA decided in 2005 to reverse its earlier decision to
recognize the tribe, the first time the agency had ever reversed a
final determination for recognition.13 In the eyes of the United States
government, the Eastern Pequot Tribal Nation members no longer
formed a sovereign entity.
The Pequots appealed this decision to the Department of the
Interior; however, they were denied because “[t]he two separate
communities [that came about] after the early 1980s are not the
same community that existed before that time.”14 By forcing the
Pequots to merge with the Paucatucks, the BIA created a situation in
which the Eastern Pequots could neither prove their existence as a
unique tribe throughout history nor satisfy the Interior Department’s
criteria for recognition.15 To the delight of political leaders in
Connecticut,16 it would be impossible for the Pequots to meet this
unique requirement as the Paucatuck merger created a brand new
tribe that did not exist before the BIA’s action.
As former U.S. Attorney General Hugh Swinton Legaré stated,
“there is nothing in the whole compass of our laws so anomalous, so
hard to bring within any precise definition or any logical and
scientific arrangement of principles, as the relation in which the
Indian stands towards this [United States] Government and those of
the States.”17 Trying to understand the legal relationship between
American Indian tribes and the United States government can be a
difficult challenge.18 With hundreds of tribes currently seeking
federal recognition, the task is even more daunting. Welcome to the
world of American Indian federal recognition.
This Note presents the history of American Indian sovereignty in
the United States by examining the legislative history of the
12. See Green, supra note 9.
13. Id. (“No state has ever successfully challenged and reversed a BIA decision.”);
see also Green & Hamilton, supra note 2 (noting that the BIA’s decision to reverse the
Eastern Pequots’ federal recognition distinction was delivered via facsimile, stunning
tribal leaders due to its impersonal nature).
14. Green & Hamilton, supra note 2 (second alteration in original) (internal
quotation marks omitted).
15. See id.
16. U.S. Rep. Nancy L. Johnson marked the occasion by calling it a “victory for
Western Connecticut,” and Governor M. Jodi Rell stated “common sense” prevailed. Id.
(internal quotation marks omitted).
17. CONG. GLOBE, 32D CONG., 1ST SESS. 33 (1851) (internal quotation marks
omitted).
18. The body of case law on American Indian sovereignty was once referred to as “a
middle-eastern bazaar where practically anything is available to those who are eager
and earnest and have the resources for persisting in the adversary system of justice.”
Joyotpaul Chaudhuri, American Indian Policy: An Overview, in AMERICAN INDIAN
POLICY IN THE TWENTIETH CENTURY 15, 23 (Vine Deloria, Jr. ed., 1985).
2012] AMERICAN INDIAN SOVEREIGNTY 475
recognition process and analyzes the legal quagmires facing
American Indians as they pursue successful recognition of their
sovereignty. This Note aims to navigate some of the intricacies,
qualms, and confusions surrounding BIA recognition. Part II will
discuss the history of the acknowledgment process. It will analyze
the pivotal Supreme Court decisions that shaped American Indian
policy in the United States. Part III will discuss the history of tribal
recognition by the federal courts. While many courts still defer to the
BIA as the only authority for acknowledgment of American Indian
tribes, this Note will explore avenues in which courts have made
determinations of tribal existence themselves. Part IV will introduce
a southern New Jersey tribe currently involved in the recognition
process and will discuss how the tribe has prepared its membership
for potential recognition as a sovereign entity. It will also explore the
challenges of interpretive ambiguities that this tribe has faced
during its journey toward federal acknowledgment. Finally, Part V
will conclude by exploring ways to improve the current BIA process
for federal recognition and offer recommendations to both the federal
government and to the judiciary when faced with an American
Indian tribe seeking to assert its sovereign status.
II. HISTORICAL AND LEGAL DEVELOPMENT OF THE BUREAU OF INDIAN
AFFAIRS FEDERAL ACKNOWLEDGMENT PROCESS
According to the 2010 census, the estimated population of
American Indians in the United States, including those mixed with
another race, was 5.2 million or 1.7% of the entire population.19 In
all, 2.9 million individuals identified themselves as American Indian
alone, without identifying with any other race on their census
forms.20 In 2005, the Bureau of Indian Affairs reported that the
population within recognized tribes21 was 1.98 million, nearly one
19. TINA NORRIS ET AL., U.S. CENSUS BUREAU, THE AMERICAN INDIAN AND ALASKA
NATIVE POPULATION 4 (2010), available at http://www.census.gov/prod/cen2010/briefs/
c2010br-10.pdf.
20. Id.
21. “‘Indian tribe’ means any Indian tribe, band, nation, or other organized group
or community . . . which is recognized as eligible for the special programs and services
provided by the United States to Indians because of their status as Indians.” Indian
Self-Determination and Education Assistance Act, 25 U.S.C. § 450b(e) (2006).
Though the definition has been debated over time, very similar definitions appear in
the following statutes: Indian Civil Rights Act of 1968, 25 U.S.C. § 1301 (2006); Indian
Health Care Improvement Act, 25 U.S.C. § 1603 (2006); Indian Alcohol and Substance
Abuse Prevention and Treatment Act of 1986, 25 U.S.C. § 2403(3) (2006); and Indian
Child Welfare Act, 25 U.S.C. § 1903 (2006); cf. Land Records and Title Documents, 25
C.F.R. § 150.2(e) (1995) (defining tribe as “tribe, band, nation, community, rancheria,
colony, pueblo, or other Federally-acknowledged group of Indians”); Loans to Indians
from the Revolving Loan Fund, 25 C.F.R. § 101.1 (1995) (defining tribe as “any Indian
tribe, bank, nation, rancheria, pueblo, colony or community, including any Alaska
Native village . . . which is recognized by the Federal Government as eligible for
476 RUTGERS LAW REVIEW [Vol. 64:2
million less than the census figure.22 According to the BIA, there are
currently 565 federally recognized American Indian tribes.23 “Federal
recognition” acknowledges the sovereign status of an American
Indian tribe and welcomes the tribe into a “government-to-
government relationship with the United States.”24
A. Historical Development of the Federal Acknowledgment
Process
Founded in 1834,25 Indian Affairs is the oldest bureau within the
Department of the Interior.26 Despite the creation of the position of
Commissioner of Indian Affairs and the formation of the BIA,
Congress retained the power to recognize tribes as sovereign through
the treaty-making process.27 This practice ended in 1871 when
Congress terminated its treaty-making authority.28 From 1871 to
1934, the Department of the Interior did not establish any type of
“recognition determinations until after the passage of the Indian
services from the [BIA]”); Housing Improvement Program, 25 C.F.R. § 256.2(g) (1995)
(defining tribe as “any Indian Tribe, Band, Nation, Rancheria, Pueblo, Colony, or
Community, including any Alaska Native Village which is federally recognized as
eligible by the United States Government”).
22. See U.S. DEP’T OF THE INTERIOR, BUREAU OF INDIAN AFFAIRS, 2005 AMERICAN
INDIAN POPULATION AND LABOR FORCE REP., at iii (2005), available at
http://www.bia.gov/idc/groups/public/documents/text/idc-001719.pdf. Though mandated
by Congress to publish a biennial report on American Indian populations, the BIA has
not published a report since 2005. See Indian Employment, Training and Related
Services Demonstration Act of 1992, Pub. L. No. 102-477, § 17(a), 106 Stat. 2302, 2305
(1992) (codified as amended at 25 U.S.C. § 3416(a) (2006)).
23. Frequently Asked Questions, U.S. DEP’T OF THE INTERIOR, BUREAU OF INDIAN
AFFAIRS, http://www.bia.gov/FAQs/index.htm (last visited Feb. 21, 2012) [hereinafter
BIA FAQs]. This figure includes Alaska Native tribes. Id.
24. Id.
25. Act of June 30, 1834, ch. 162, 4 Stat. 735 (codified as amended at 25 U.S.C. § 1
(2006)).
26. Who We Are, U.S. DEP’T OF THE INTERIOR, BUREAU OF INDIAN AFFAIRS,
http://www.bia.gov/WhoWeAre/index.htm (last visited Feb. 21, 2012). Though the
congressional Act of June 30, 1834, establishing the BIA was not passed until 1834,
the BIA website claims that it was founded in 1824, with no verification or citation to
support this fact. See id.
27. Act of March 3, 1871, ch. 120, 16 Stat. 544, 566 (codified as amended at 25
U.S.C. § 71 (2006)); see also Golden Hill Paugussett Tribe of Indians v. Weicker, 39
F.3d 51, 57 (2d Cir. 1994) (“Between 1834 and 1871 Congress continued to deal
directly by means of its treaty-making power with American Indian tribes . . . .”).
28. 16 Stat. at 566. The decision to stop making treaties came as a result of
political maneuvers. The strategic military applications of treaties declined with the
War of 1812 and as southern tribes began to ally themselves with the Confederacy in
the Civil War. See generally FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW §
1.03(6)-(9) (2009 ed.) [hereinafter COHEN HANDBOOK]. In order to better balance the
powers of the two houses of Congress, the House of Representatives forced the
abandonment of the treaty-making power. Id.
2012] AMERICAN INDIAN SOVEREIGNTY 477
Reorganization Act,”29 which created benefits that were only
available to “recognized” Indian tribes.30 The Bureau did not
establish any uniform policy to acknowledge American Indian tribes
as sovereign until 1978.31 Between 1934 and 1978, the BIA
“recognized . . . tribes on a case-by-case basis.”32 The agency
considered tribes sovereign if they had actively participated in
treaties and agreements with either the United States or the various
European states.33 These relationships were enforceable “under the
Articles of Confederation, the Northwest Ordinance, and the . . . U.S.
Constitution.”34
Prior to 1924, treaty provisions or land grants bestowed U.S.
citizenship upon “nearly two-thirds of all [American] Indians.”35 After
World War I, the United States extended federal citizenship to all
Indians, whether they wanted it or not.36 This gesture was intended
to extend to the tribes the same protections and rights that American
citizens enjoyed; however, it would not protect them from various
future challenges, especially in the area of property rights. This
period of time, particularly throughout the 1940s and 1950s, was
extremely difficult for American Indians, as the national attitude
shifted from tribal recognition of sovereign status to assimilation or
destruction.37
Named the “Termination Era,” the unofficial goal of the United
States government was to destroy tribal identity,38 and many
American Indians decided to hide their tribal status or disguise
themselves as another racial group.39 Further, dual citizenship
29. Golden Hill, 39 F.3d at 57.
30. Indian Reorganization Act of 1934, ch. 576, 48 Stat. 984 (1934) (codified as
amended at 25 U.S.C. §§ 461-79 (2006)).
31. INDIAN ISSUES, supra note 5, at 3-4; see 25 C.F.R. § 83.2 (2011).
32. Golden Hill, 39 F.3d at 57.
33. WILKINS, supra note 11, at 22-23.
34. Id.
35. Id. at 24.
36. Indian Citizenship Act, ch. 233, 43 Stat. 253 (1924) (codified as amended at 8
U.S.C. § 1401(b) (2006)) (granting citizenship to all noncitizen Indians born within the
territorial limits of the United States).
37. Norwood Interview, supra note 1.
38. United States v. Washington, 476 F. Supp. 1101, 1103 (W.D. Wash. 1979),
aff’d, 641 F.2d 1368 (9th Cir. 1981) (“During the latter part of the 19th century and
early part of the 20th century it was the policy of the United States Government to
encourage the breaking up of Indian reservations and destruction of tribal relations
and to settle Indians upon their own allotments or homesteads, acculturate and
incorporate them into the national life, and deal with them not as nations or tribes or
bands but as individual citizens.”); see Termination Era 1950s, Public Law 280,
FEDERAL INDIAN LAW FOR ALASKAN TRIBES, http://tm112.community.uaf.edu/unit-
2/termination-era-1950s-public-law-280 (last visited Mar. 21, 2012).
39. See Washington, 476 F. Supp. at 1103. This era caused many American Indian
tribes to lose or stop keeping records of their actions as they went underground to
478 RUTGERS LAW REVIEW [Vol. 64:2
(tribal and federal) placed American Indians in a political and legal
“limbo” at a time when national policy focused on “detribalization,
individualization, and assimilation.”40
Before the Federal Acknowledgment Process was finalized in
1978, the government recognized tribes through treaties,41 executive
orders,42 acts of Congress,43 administrative decisions of the BIA,44
and court decisions.45 In the Constitution, American Indians are
considered separate sovereign entities from the citizens of the United
States, akin to foreign nations.46 The explicit powers of Congress in
Indian affairs are found in the Commerce Clause, but the
Constitution is silent on the powers of the states.47 With authority
over tribes vested in a myriad of sources, many believed that the
tribal-federal relationship was marred by inconsistency, establishing
prevent the federal government from terminating them. See id. Unfortunately, when
these tribes apply for federal acknowledgment from the BIA, many are criticized or
rejected for these “unexplained” gaps in their historical records. See, e.g., Green &
Hamilton, supra note 2.
40. WILKINS, supra note 11, at 25.
41. Past treaties would still be upheld, and those tribes that were original parties
to treaties would remain recognized. 25 U.S.C. § 71 (2006); see BIA FAQs, supra note
23.
42. BIA FAQs, supra note 23; Act of June 30, 1834, ch. 162, § 17, 4 Stat. 735, 738
(codified as amended at 25 U.S.C. § 9 (2006)) (granting the President authority “to
prescribe such . . . regulations as he may think fit, for carrying into effect the various
provisions of this act, and of any other act relating to Indian affairs”).
43. Congress restored the Confederated Tribes of Siletz Indians of Oregon as a
federally recognized sovereign Indian tribe. Siletz Indian Tribe Restoration Act, Pub.
L. No. 95-195, 91 Stat. 1415 (1977) (codified at 25 U.S.C. § 711a (2006)).
44. See INDIAN ISSUES, supra note 5, at 25; REVEREND JOHN NORWOOD,
DELEGATE’S REPORT ON THE NATIONAL CONGRESS OF AMERICAN INDIANS: 2011 MID-
WINTER EXECUTIVE SESSION 1 (2011) (“Bureau of Indian Affairs has been in violation
of [the 1994 List Act] because they have refused to list tribes [for federal
acknowledgment] following court rulings of their status.”).
45. The Supreme Court has long struggled with the definition of “tribe.” See
United States v. Candelaria, 271 U.S. 432, 442-43 (1926); Kan. Indians, 72 U.S. (5
Wall.) 737, 756-57 (1866); United States v. Wright, 53 F.2d 300, 306-07 (4th Cir. 1931).
The language most frequently cited is found within Montoya v. United States, which
was decided in 1901: “By a ‘tribe’ we understand a body of Indians of the same or a
similar race, united in a community under one leadership or government, and
inhabiting a particular though sometimes ill-defined territory . . . .” 180 U.S. 261, 266
(1901).
46. American Indians are distinctly mentioned as separate from the official
population in the U.S. Constitution for purposes of determining congressional
representatives. U.S. CONST. art. I, § 2, cl. 3. (“Representatives . . . shall be determined
by adding to the whole [n]umber of free [p]ersons . . . and excluding Indians not taxed .
. . .”). The Fourteenth Amendment also refers to “Indians not taxed” for the same
reason. U.S. CONST. amend. XIV, § 2.
47. U.S. CONST art. I, § 8, cl. 3 (granting Congress the power “to regulate
[c]ommerce with foreign [n]ations . . . and with the Indian [t]ribes”).
2012] AMERICAN INDIAN SOVEREIGNTY 479
the need for a uniform procedure.48
B. The Current Federal Acknowledgment Process
In 1978, the BIA first established the formal process to recognize
American Indian Tribes, known as the Federal Acknowledgment
Process (“FAP”).49 To petition the FAP, the governing body of a tribe
seeking recognition must first submit a letter of intent to the
Assistant Secretary of the BIA.50 After receiving this letter, the BIA
“publishes a notice in the Federal Register, publishes a legal notice in
a local newspaper, notifies the governor and attorney general of the
tribe’s state, sends a letter of response to the tribe, and establishes
an administrative file.”51 The next step of the FAP requires the tribe,
now considered a “petitioner,” to provide enough historical
documentation to satisfy the seven criteria established by the FAP to
determine if the tribe is a “political and social community that is
descended from a historic tribe.”52 To satisfy the seven criteria, a
petitioner must:
(a) Establish that it “has been identified as an American Indian
entity on a substantially continuous basis since 1900”;53
(b) Establish that a “predominant portion of the . . . group
comprises a distinct community and has existed as a community from
historical times until the present”;54
(c) Establish that the group “has maintained political influence
or authority over its members as an autonomous entity from
historical times until the present”;55
(d) Provide a “copy of the group’s present governing document
including its membership criteria. In the absence of a written
48. See DAVID E. WILKINS & K. TSIANINA LOMAWAIMA, UNEVEN GROUND:
AMERICAN INDIAN SOVEREIGNTY AND FEDERAL LAW 9-10 (2001) (“Within the federal
government, Congress has not always agreed with the Supreme Court, the president
has not always agreed with Congress, and bureau chiefs have often had their own
particular visions or agendas.”).
49. This process was first published in the Federal Register, 43 Fed. Reg. 39,361
(Aug. 24, 1978), and later added to the Code of Federal Regulations, 25 C.F.R. §§ 83.1-
83.11 (1982). See BIA FAQs, supra note 23. The Federal Acknowledgment Process has
been revised a handful of times since 1978, however, there have been no changes to the
requirements for recognition. See Procedures for Establishing that an American Indian
Group Exists as an Indian Tribe, 25 C.F.R. §§ 83.1-83.13 (1994) (clarifying evidentiary
requirements); Changes in the Internal Processing of Federal Acknowledgment
Petitions, 65 Fed. Reg. 7,052 (Feb. 11, 2000) (providing updates to internal processing
procedures).
50. 25 C.F.R. § 83.4(c) (2011); see INDIAN ISSUES, supra note 5, at 4.
51. COHEN HANDBOOK, supra note 28, § 3.02(7)(a).
52. See INDIAN ISSUES, supra note 5, at 4.
53. 25 C.F.R. § 83.7(a) (2011).
54. Id. § 83.7(b).
55. Id. § 83.7(c).
480 RUTGERS LAW REVIEW [Vol. 64:2
document, the petitioner must provide a statement describing in full
its membership criteria and current governing procedures”;56
(e) Show that the “membership consists of individuals who
descend from a historical Indian tribe or from historical tribes which
combined and functioned as a single autonomous political entity”;57
(f) Establish that the “membership of the . . . group is composed
principally of persons who are not members of any acknowledged
North American Indian tribe”;58 and
(g) Establish that “[n]either the petitioner nor its members are
the subject of congressional legislation that has expressly terminated
or forbidden the Federal relationship.”59
To satisfy these regulations, the petitioner “must include
thorough explanations and supporting documentation in response to
all of the criteria.”60 The petitioner will succeed if the BIA determines
that “the available evidence establishes a reasonable likelihood of the
validity of the facts relating to that criterion.”61
Upon submitting documentation, the petitioner’s materials are
placed under “technical assistance review” by the BIA’s Branch of
Acknowledgment and Research (“BAR”).62 This “preliminary review”
is the petitioner’s dress rehearsal, allowing the BAR to review the
documents, make comments, and inform the petitioner of any
56. Id. § 83.7(d).
57. Id. § 83.7(e). It is unclear just how much of the membership must meet this
criterion, leaving the matter up to the subjective determination of the Assistant
Secretary. See INDIAN ISSUES, supra note 5, at 13.
In one case, the technical staff recommended that a petitioner not be
recognized because the petitioner could only demonstrate that 48 percent of
its members were descendents. The technical staff concluded that finding
that the petitioner had satisfied this criterion would have been a departure
from precedent established through previous decisions in which petitioners
found to meet this criterion had demonstrated a higher percentage of
membership descent from a historic tribe. However, in the proposed finding,
the Assistant Secretary found that the petitioner satisfied the criterion. The
Assistant Secretary told [the authors of this report] that this decision was
not consistent with previous decisions by other Assistant Secretaries but
that he believed the decision to be fair because the standard used for
previous decisions was unfairly high.
Id.
58. 25 C.F.R. § 83.7(f).
59. Id. § 83.7(g).
60. Id. § 83.6(c).
61. Id. § 83.6(d). While the standard set by statute was originally “a reasonable
likelihood,” this standard has shifted over time to be interpreted as “beyond a shadow
of a doubt.” Norwood Interview, supra note 1.
62. See COHEN HANDBOOK, supra note 28, § 3.02(7)(a) (internal citation and
quotation marks omitted); 25 C.F.R. § 83.10(b)(1). The understaffed BAR is comprised
of “an [sic] historian, an anthropologist, and a genealogist.” See Rachael Paschal,
Comment, The Imprimatur of Recognition: American Indian Tribes and the Federal
Acknowledgment Process, 66 WASH. L. REV. 209, 216-17 (1991).
2012] AMERICAN INDIAN SOVEREIGNTY 481
deficiencies that can be corrected before the petition reaches the
Assistant Secretary of the BIA for active consideration.63 After the
technical assistance review, the tribe’s petition is placed in “ready”
status for active consideration, and notification will be sent to the
petitioner and any other interested parties, which “includes the
governor and attorney general of the state in which [the] petitioner is
located, and may include . . . local governmental units, and any
recognized Indian tribes and unrecognized Indian groups that might
be affected by an acknowledgment determination.”64
With the petition complete, the BAR will compile the “underlying
evidence, reasoning, and analyses” into a “Proposed Finding”
recommendation for or against recognition, to be published in the
Federal Register within one year.65 These recommendations are
submitted for review to “the Department’s Office of the Solicitor and
senior officials within [the] BIA, culminating with the approval of the
Assistant Secretary-Indian Affairs.”66 Once the Proposed Finding is
published, “the petitioner or any individual or organization wishing
to challenge or support the proposed findings shall have 180 days to
submit arguments and evidence to the Assistant Secretary to rebut
or support the proposed finding.”67 During the 180-day period, the
Assistant Secretary may hold a meeting between the petitioner and
interested parties,68 and following this period, the Assistant
Secretary publishes a final determination in the Federal Register
“within 60 days from the date on which the consideration of the
written arguments and evidence rebutting or supporting the
proposed finding begins.”69
63. 25 C.F.R. § 83.10(b)(1).
64. 25 C.F.R. §§ 83.1, 83.10(d). It is at this stage that many of these “[i]nterested
part[ies]” will join the fight against the tribe’s recognition, similar to the Eastern
Pequots in Connecticut, out of fear of a looming casino.
65. COHEN HANDBOOK, supra note 28, § 3.02(7)(a). The Secretary can grant
extensions to the one-year publishing schedule. 25 C.F.R. § 83.10(h).
66. INDIAN ISSUES, supra note 5, at 4.
67. 25 C.F.R. § 83.10(i).
68. Id. § 83.10(j)(2). Perhaps this regulation was added to prevent interested
parties from blocking tribal recognition for frivolous reasons and unfounded fears.
69. Id. § 83.10(l)(2). The Assistant Secretary and the BAR do not always agree on
their recommendations. Recent decisions have involved the BAR recommending
against recognition, and despite this fact, the Assistant Secretary found that the
petitioner adequately satisfied the criteria. See INDIAN ISSUES, supra note 5, at 11.
In one case, the technical staff recommended that a petitioner not be
recognized because there was a [seventy]-year period for which there was no
evidence that the petitioner satisfied the criteria for continuous existence as
a distinct community exhibiting political authority. The technical staff
concluded that a [seventy]-year evidentiary gap was too long to support a
finding of continuous existence. The staff based its conclusion on precedent
established through previous decisions where the absence of evidence for
shorter periods of time had served as grounds for finding that petitioners did
482 RUTGERS LAW REVIEW [Vol. 64:2
The Assistant Secretary’s final determination “will become
effective [ninety] days from publication unless a request for
reconsideration is filed pursuant to [25 C.F.R.] § 83.11.”70 These
reconsideration requests will be considered by the Interior Board of
Indian Appeals.71 Using the criteria set forth in 25 C.F.R. §
83.11(d)(1)-(4), the Board may affirm or vacate the Assistant
Secretary’s recommendation based on a preponderance of the
evidence standard.72 The Assistant Secretary’s decision is considered
final and effective 120 days after the reconsidered decision is
published in the Federal Register, so long as the Board finds no
request for reconsideration to be timely.73 A successfully recognized
tribe “shall be considered eligible for the services and benefits from
the Federal government that are available to other federally
recognized tribes[;] . . . shall be considered a historic tribe and shall
be entitled to the privileges and immunities available to other
federally recognized historic tribes by virtue of their government-to-
government relationship with the United States[;] . . . shall also have
the responsibilities and obligations of such tribes[; and] . . . shall
likewise be subject to the same authority of Congress and the United
States as are other federally acknowledged tribes.”74
C. Legal Development of the Federal Recognition Process
i. The Marshall Decisions (1823-1835)
Over the years, the Supreme Court decided many cases defining
the unique tribal, state, and federal relationship. The foundation for
this body of case law lies in three Supreme Court decisions of the
early 1800s. John Marshall, the third chief justice in U.S. history,
presided over decisions dealing with emerging American Indian
issues such as: “(1) tribal property rights, (2) tribal political status in
relation to the states, (3) tribal status in relation to the federal
government, and (4) the international standing of tribal treaty
rights.”75
The legal definition of the relationship between American
Indians and the federal government developed through a trio of cases
dealing with land title claims between tribes and private citizens.
not meet these criteria. However, in this case, the Assistant Secretary issued
a proposed finding to recognize the petitioner, concluding that continuous
existence could be presumed despite the lack of specific evidence for a 70-
year period.
Id. at 12.
70. 25 C.F.R. § 83.10(l)(4).
71. Id. § 83.11(a)(1).
72. Id. § 83.11(e)(9)-(10).
73. Id. § 83.11(h)(1).
74. Id. § 83.12(a).
75. WILKINS, supra note 11, at 28.
2012] AMERICAN INDIAN SOVEREIGNTY 483
Johnson v. McIntosh76 created a type of “‘landlord-tenant’
relationship between the federal government and the Indian
tribes.”77 The Court was tasked with finding if American Indians had
the power to grant private citizens title to their lands and if those
titles could be enforceable in United States courts.78 In his decision,
Marshall crafted the “discovery doctrine” to explain that as its
citizens settled in America, the United States government claimed
these lands as part of their “absolute title” power bestowed upon
colonization.79 As “civilized inhabitants,” the United States had “an
exclusive right to extinguish the Indian title of occupancy, either by
purchase or by conquest.”80 The Marshall Court recognized that the
tribes’ “rights to complete sovereignty, as independent nations, were
necessarily diminished [upon the founding of the colonies], and their
power to dispose of the soil at their own will, to whomsoever they
pleased, was denied by the original fundamental principle, that
discovery gave exclusive title to those who made it.”81 Therefore, by
discovering North America, the British colonists claimed a right to
absolute title of all lands within.82 Marshall also included: “Indian
inhabitants are to be considered merely as occupants, to be
protected . . . in the possession of their lands, but to be deemed
incapable of transferring the absolute title to others.”83 While the
relationship between American Indian tribes and the federal
government would evolve beyond that of “tenant/landlord,” Johnson
76. 21 U.S. (8 Wheat.) 543 (1823).
77. WILKINS, supra note 11, at 31; see also VINE DELORIA, JR. & CLIFFORD M.
LYTLE, AMERICAN INDIANS, AMERICAN JUSTICE 26-27 (1983) (“The federal government,
as the ultimate landlord, not only possessed the power to terminate the ‘tenancy’ of its
Indian occupants but also could materially affect the lives of Indians through its
control and regulation of land use.”).
78. See Johnson, 21 U.S. (8 Wheat.) at 571-72.
79. See id. at 587-88.
80. Id. at 587.
81. Id. at 574. Neither American Indian tribe involved in the land transaction at
issue was named as a party in this case. See id. at 543 (stating the case concerns an
action of ejectment involving plaintiff’s purchase of land from the Piankeshaw Indians
and defendant who was granted the land from the government). Therefore, these
decisions concerning American Indian land rights were made with no representative of
the tribal community present. Furthermore, it is unclear (and doubtful) that this
decision was ever communicated to the American Indian tribes so that they could
adjust their behavior accordingly.
82. See id. at 587 (disclaiming American Indians’ rights to title in land).
83. Id. at 591. Though he would refer to them as “independent nations” and
“rightful occupants,” id. at 574, Marshall showed that he simply did not trust leaving
the country in tribal hands: “But the tribes of Indians inhabiting this country were
fierce savages, whose occupation was war, and whose subsistence was drawn chiefly
from the forest. To leave them in possession of their country, was to leave the country
a wilderness . . . .” Id. at 590.
484 RUTGERS LAW REVIEW [Vol. 64:2
and its discovery doctrine still remain “good” law.84 Though the
Marshall Court chipped away at this holding in subsequent
decisions, Johnson “is still regularly cited by commentators” on the
subject, and the effects of the discovery doctrine still linger in
American Indian law.85
Following Johnson, the Marshall Court backtracked on the
discovery doctrine and redefined the unique tribal-federal
relationship. In Cherokee Nation v. Georgia, Chief Justice Marshall
wrote that American Indians “are acknowledged to have an
unquestionable, and heretofore unquestioned, right to the lands they
occupy, until that right shall be extinguished by a voluntary cession
to our government,” and that the relationship between American
Indians and the United States resembled a “ward to his guardian.”86
Rejecting tribes as “foreign nations,” Marshall found a new
descriptor: “They may, more correctly, perhaps, be denominated
domestic dependent nations.”87 Marshall explained his difficulty in
finding a proper definition for this relationship as “the relation of the
Indians to the United States is marked by peculiar and cardinal
distinctions which exist nowhere else.”88
One year after Cherokee Nation, Marshall attempted to further
“modify” his ruling in Johnson. This correction, introduced in the
decision Worcester v. Georgia,89 only brought more confusion to the
status of American Indians. Marshall referred to them as “a distinct
people, divided into separate nations, independent of each other and
of the rest of the world, having institutions of their own, and
governing themselves by their own laws.”90 Where in Johnson,
84. See WILKINS, supra note 11, at 35.
85. Id. Marshall seems to acknowledge that the discovery doctrine is founded on
legal fiction, and tries to justify its use through practice:
However extravagant the pretension of converting the discovery of an
inhabited country into conquest may appear; if the principle has been
asserted in the first instance, and afterwards sustained; if a country has
been acquired and held under it; if the property of the great mass of the
community originates in it, it becomes the law of the land, and cannot be
questioned.
Johnson, 21 U.S. (8 Wheat.) at 591.
86. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831). Marshall explains his
“ward” classification further: “They look to our government for protection; rely upon its
kindness and its power; appeal to it for relief to their wants; and address the president
as their great father.” Id.
87. Id.
88. Id. at 16.
89. 31 U.S. (6 Pet.) 515 (1832).
90. Id. at 542-43 (emphasis added). Marshall contradicts the “absolute title” theory
from Johnson:
It is difficult to comprehend the proposition, that the inhabitants of either
quarter of the globe could have rightful original claims of dominion over the
inhabitants of the other, or over the lands they occupied; or that the
2012] AMERICAN INDIAN SOVEREIGNTY 485
Marshall was clear that the United States “diminished” those land
rights of the occupying tribes,91 in Worcester, he determined that the
discovery doctrine was
an exclusive principle which shut out the right of competition
among those who had agreed to it; not one which could annul the
previous rights of those who had not agreed to it. It regulated the
right given by discovery among the European discoverers; but could
not affect the rights of those already in possession [like American
Indians], either as aboriginal occupants, or as occupants by virtue
of a discovery made before the memory of man.92
In summation: “The crown could not be understood to grant what the
crown did not affect to claim; nor was it so understood. . . . [These
colonial grants and charters merely] asserted a title against
Europeans only, and were considered as blank paper so far as the
rights of the natives were concerned.”93 Though Worcester seemed to
redeem the rights of American Indians, the issue of the discovery
doctrine remained after Marshall’s tenure with the Court.
ii. After Marshall
Three years after Worcester was decided, Mitchel v. United States
washed away the effects of the Johnson holding that Indians lack the
power to convey their lands.94 Decided after Marshall’s term as Chief
Justice, Justice Henry Baldwin wrote on behalf of the Court:
“[F]riendly Indians were protected in the possession of the lands they
occupied, and were considered as owning them by a perpetual right of
possession in the tribe or nation inhabiting them . . . .”95 Baldwin
continued referring to the American Indians’ “right of occupancy . . .
as sacred as the fee simple of the whites.”96 Therefore, if American
Indians held their land in fee simple, they were free to sell those
lands and transfer their titles without incident. But Baldwin went a
step further: “The Indian right to the lands as property, was not
merely of possession, that of alienation was concomitant; both were
equally secured, protected, and guaranteed by Great Britain and
discovery of either by the other should give the discoverer rights in the
country discovered, which annulled the pre-existing rights of its ancient
possessors.
Id. at 543.
91. Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 574 (1823).
92. Worcester, 31 U.S. (6 Pet.) at 544.
93. Id. at 545-46.
94. See Mitchel v. United States, 34 U.S. (9 Pet.) 711, 758-60 (1835) (noting that
American Indians had the right to alienate property under the British and Spanish
crown).
95. Id. at 745.
96. Id. at 746.
486 RUTGERS LAW REVIEW [Vol. 64:2
Spain . . . .”97 Where once American Indian rights to land titles were
extinguished by the mother nations of colonizing forces, based on this
case, by 1835, these rights were believed to be guaranteed by those
nations.
This back-and-forth from the High Court on the issue of the
relationship between American Indians and the federal government
persisted depending on the composition of the Court. In 1846 Chief
Justice Taney, perhaps best known for his decision in Dred Scott,98
penned a decision as damaging to American Indians as Scott was for
African Americans. Found within the dicta of United States v.
Rogers, Taney stated that tribes “have never been acknowledged or
treated as independent nations by the European governments, nor
regarded as the owners of the territories they respectively
occupied.”99 Directly contradicting the idea that American Indians
were independent entities that held their land in fee simple found in
the Worcester and Mitchel opinions, Taney’s words were a step
backward—a direct attack on tribal sovereignty and property
ownership rights. He wrote that the land “has been assigned to [the
Cherokees] by the United States, as a place of domicile for the tribe,
and they hold and occupy it with the assent of the United States, and
under their authority.”100 To emphasize his point, Taney continued:
“the whole continent was divided and parceled out, and granted by
the governments of Europe . . . and the Indians continually held to
be, and treated as, subject to their dominion and control.”101 This
opinion also introduced the “political question” doctrine, which
prevented many tribes from seeking redress through the judicial
system for violations of sovereign rights.102
97. Id. at 758 (emphasis added).
98. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), superceded by
constitutional amendment, U.S. CONST. amend. XIV.
99. United States v. Rogers, 45 U.S. (4 How.) 567, 572 (1846).
100. Id.
101. Id. (emphasis added). Though these statements are widely considered to be
dicta, they had an immediate effect on the landscape of American Indian law. In the
summer of 1846, after the Rogers decision, a Senate Committee on the Judiciary met
to consider the issue of extending federal laws into Indian territory. WILKINS, supra
note 11, at 51. Offering his opinion, Commissioner of Indian Affairs William Medill
stated that the federal government had the “original power . . . to subject the Indian
tribes within the limits of their sovereignty to any system of laws having for their
object the prevention or punishment of crimes, or the melioration of the condition and
improvement of the red race . . . .” Id. (quoting S. REP. NO. 29-461, at 2 (1846)). Medill
revealed that “[t]he correct doctrine on this point . . . . [was in the] views of the highest
judicial tribunal of the land [and] must be deemed to be conclusive.” WILKINS, supra
note 11, at 51 (third alteration in original) (internal quotation marks omitted).
Influenced by the Rogers decision, Medill echoed the recent decisions of the federal
government’s dominance over tribal sovereignty and clearly presented them to
Congress as fact.
102. See Rogers, 45 U.S. (4 How.) at 572.
2012] AMERICAN INDIAN SOVEREIGNTY 487
Despite his previous statements in Rogers, Taney presented in
his infamous Dred Scott opinion another Supreme Court reversal on
the issue of American Indian sovereignty.103 While deciding that
slaves could not be citizens of the United States, the Court also
distinguished the African American population from the American
Indians.104 In a passage that cannot be reconciled with his opinion in
Rogers, Taney writes “although [American Indians] were uncivilized,
they were yet a free and independent people, associated together in
nations or tribes, and governed by their own laws.”105 Directly
contrasting Rogers, Taney stated:
These Indian Governments were regarded and treated as foreign
Governments . . . and their freedom has constantly been
acknowledged, from the time of the first emigration to the English
colonies to the present day, by the different Governments which
succeeded each other. Treaties have been negotiated with them,
and their alliance sought for in war; and the people who compose
these Indian political communities have always been treated as
foreigners not living under our Government.106
These statements underscore Taney’s drastic indecisiveness from one
case to another. In Rogers, Taney asserted that American Indians
had never been considered foreign entities.107 Eleven years later,
Taney declared that tribes had always been acknowledged as equal
to foreign governments.
Through the years, the United States’ acknowledgment of the
inherent sovereignty of American Indians remained in flux. In The
Cherokee Tobacco, the Court held that all congressional acts would
apply to American Indian tribes unless Congress expressly excluded
them.108 By the late 1880s, the Court paved the path for the
Executive Branch and Congress to continue to intervene on tribal
sovereignty. In United States v. Kagama, the Court embraced the
103. Dred Scott, 60 U.S. (19 How.) at 403-04.
104. Id.
105. Id. at 403.
106. Id. at 404 (emphasis added). To his credit, Taney does return to his previous
ideology when it comes to land rights:
It is true that the course of events has brought the Indian tribes within the
limits of the United States under subjection to the white race; and it has
been found necessary, for their sake as well as our own, to regard them as in
a state of pupilage, and to legislate to a certain extent over them and the
territory they occupy.
Id.
107. Rogers, 45 U.S. (4 How.) at 572.
108. The Cherokee Tobacco, 78 U.S. (11 Wall.) 616, 621 (1870). This case was
published in United States Reports as simply “The Cherokee Tobacco.” It can be found
in the Lawyer’s Edition and the Supreme Court Report, under its full title: “Two
Hundred and Seven Half-Pound Papers of Smoking Tobacco, etc., Elias C. Boudinot et
al., Claimant Plaintiffs in error v. United States.” See WILKINS, supra note 11, at 54.
488 RUTGERS LAW REVIEW [Vol. 64:2
foundation set by Cherokee Nation and reestablished that “Indian
tribes are the wards of the nation. They are communities dependent
on the United States,—dependent largely for their daily food;
dependent for their political rights.”109 Ironically, the Court noted the
American Indians’ plight stemmed from the United States
government: “From their very weakness and helplessness, so largely
due to the course of dealing of the federal government with them, and
the treaties in which it has been promised, there arises the duty of
protection, and with it the power. This has always been recognized by
the executive, and by congress, and by this court, whenever the
question has arisen.”110 With this passage, the Court further
diminished the notion of tribal sovereignty and elevated Congress to
a role of paternal “plenary” power. This blanket statement that
power over tribes had “always” belonged to the executive and
legislative branches ignored decades of established case law and
treaties. While the “protection” of tribes sounded virtuous, Congress
used this power to intervene further into intratribal affairs.
iii. Advocating Toward Sovereignty
These ideas of “wardship” and “dependency” permeated
American Indian philosophy until congressional reform came in the
form of the Indian Reorganization Act of 1934 (“IRA”).111 The IRA
served as an attempt to identify and preserve tribes on a national
roll. The IRA is also credited with “terminating the notorious [land]
allotment policy, [giving] rise to widespread empathy for Indian
culture, allow[ing] a measured degree of Indian self-government, and
garner[ing] congressional support for Indian education, Indian
preference, and other necessary economic development projects.”112
However, this list was not without controversy, as tribes who were
not specifically invited were left off the roll and had no knowledge of
its creation.113 The new Commissioner of Indian Affairs, John Collier,
was largely credited with the creation of the Act. The Act promoted a
new philosophy that “offered an alternative answer to Indian
dependency: reconstitution and strengthening of Indian tribes in
some sort of autonomy, self-sufficiency, semisovereignty, or self-
determination.”114
The Civil Rights Movement of the 1960s afforded tribes a
number of significant legal victories and a return to self-
determination at a time when the nation grew more aware of
109. United States v. Kagama, 118 U.S. 375, 384 (1886).
110. Id.
111. 25 U.S.C. § 476 (2006).
112. WILKINS, supra note 11, at 118.
113. Norwood Interview, supra note 1.
114. FRANCIS P. PRUCHA, THE INDIANS IN AMERICAN SOCIETY 56 (1985); see
Norwood Interview, supra note 1.
2012] AMERICAN INDIAN SOVEREIGNTY 489
differing cultures. These victories came through extreme activism on
behalf of the tribes115 and efforts by “several non-Indian
organizations, a number of state officials, and some members of
Congress from states where tribes were gaining positive legislative
and judicial results.”116 This period included triumphs over the
executive banch,117 Congress, and the Court.118 In some of these
cases, federal recognition status was a deciding factor in whether or
not a tribe prevailed.
Two particular legal battles, generating two inconsistent
opinions, inadvertently led to the creation of the FAP. In the first,
United States v. Washington, the Ninth Circuit held that only treaty
signatories and federally recognized tribes were entitled to their
right to fish on reservations without state regulation.119 In contrast,
the First Circuit held that the State of Maine had to return acres of
tribal land to the Passamaquoddys, an unrecognized tribe.120 Because
it was unclear whether a tribe needed to attain federal recognition to
assert its sovereignty and self-governance, American Indian tribes
began to apply for federal acknowledgment at a record pace.121 Due to
115. These acts included the occupation of Alcatraz prison in 1969, “the 1972 Trail
of Broken Treaties, . . . the 1973 occupation of Wounded Knee on the Pine Ridge
Indian Reservation, [and] the untold fish-ins, marches, demonstrations and boycotts.”
WILKINS, supra note 11, at 186; see FRANCIS P. PRUCHA, AMERICAN INDIAN TREATIES:
THE HISTORY OF A POLITICAL ANOMALY 410-19 (1994) (discussing the early organized
Indian activism that occurred and the movement toward restoring Indian tribes’
treaty-status relationship with the U.S. government).
116. WILKINS, supra note 11, at 186.
117. See Special Message to the Congress on Indian Affairs, 213 PUB. PAPERS 564,
564-67, 575-76 (July 8, 1970) (noting President proposed “legislation which would
empower a tribe or a group of tribes or any other Indian community to take over the
control or operation of Federally-funded and administered programs”).
118. See, e.g., United States v. Washington, 520 F.2d 676 (9th Cir. 1975)
(determining fishing rights); Morton v. Mancari, 417 U.S. 535 (1974) (determining
preference regulations); Joint Tribal Council of Passamaquoddy Tribe v. Morton, 388
F. Supp. 649 (D. Me. 1975), aff’d, 528 F.2d 370 (1st Cir. 1975) (determining tribal
recognition and land claims).
119. Washington, 520 F.2d at 692-93. However, the court also noted:
Rights under the treaties vested with the tribes at the time of the signing of
the treaties. Nonrecognition of the tribe by the federal government and the
failure of the Secretary of the Interior to approve a tribe's enrollment may
result in loss of statutory benefits, but can have no impact on vested treaty
rights. Whether a group of citizens of Indian ancestry is descended from a
treaty signatory and has maintained an organized tribal structure is a
factual question which a district court is competent to determine.
Id.
120. Passamaquoddy Tribe, 528 F.2d at 372-73; cf. Mashpee Tribe v. New Seabury
Corp., 592 F.2d 575, 594 (1st Cir. 1979) (finding plaintiffs were ineligible for
protections under Indian Nonintercourse Act because they did not exist as tribal
entity).
121. See William W. Quinn, Jr., Federal Acknowledgment of American Indian
Tribes: The Historical Development of a Legal Concept, 34 AM. J. LEGAL HIST. 331, 360-
490 RUTGERS LAW REVIEW [Vol. 64:2
the influx of requests, the BIA was forced to suspend all active
considerations until a formal process could be established.122 Though
the BIA explored many possibilities,123 the agency ultimately decided
on the lengthy criteria outlined above in 1978.124
III. A SECOND PATH TO ACKNOWLEDGMENT - FEDERAL
ACKNOWLEDGMENT BY THE COURTS
As Congress reaffirmed in the Federally Recognized Indian Tribe
List Act of 1994 (“List Act”),125 federal acknowledgment by the BIA is
not the only gateway for American Indian tribes to be recognized as
sovereign. In creating the List Act, Congress declared that “Indian
tribes . . . may be recognized by Act of Congress; by the
administrative procedures set forth in part 83 of the Code of Federal
Regulations [the FAP] . . . or by a decision of a United States
court.”126
The courts are currently split on their role in determining
American Indian Sovereignty under the List Act. While some federal
courts have used their List Act power to recognize a tribe,127 others
have continually deferred to the BIA as the only source of authority
63 (1990).
122. Id. at 363. This sudden suspension caused the D.C. District Court to conclude
that the delay in the decision to recognize the Stillaguamish Tribe was “arbitrary and
capricious.” Stillaguamish Tribe v. Kleppe, Civ. No. 75-1718, 1976 U.S. Dist. LEXIS
17381, *3 (D.D.C. Sept. 24, 1976). The court forced the BIA to make an immediate
decision. See id. The Department of Interior proposed federal acknowledgment
regulations ten months later. See Quinn, supra note 121, at 363.
123. There were:
[Four hundred] meetings, discussions, and conversations about Federal
acknowledgement with other Federal agencies, State government officials,
tribal representatives, petitioners, congressional staff members, and legal
representatives of petitioning groups; 60 written comments on the initial
proposed regulations of June 16, 1977; a national conference on Federal
acknowledgment attended by approximately 350 representatives of Indian
tribes and organizations; and 34 comments on the revised proposed
regulations, published on June 1, 1978.
Procedures for Establishing that an American Indian Group Exists as an Indian Tribe,
43 Fed. Reg. 39,361 (Aug. 24, 1978) (to be codified at 25 C.F.R. pt. 54).
124. Procedures for Establishing that an American Indian Group Exists as an
Indian Tribe, 43 Fed. Reg. 23,743 (proposed June 1,1978) (to be codified at 25 C.F.R.
pt. 54).
125. 25 U.S.C. § 479a-1 (1994).
126. H.R. 4180, 103d Cong. § 103(3) (1994) (enacted) (emphasis added). Also of note,
§103(4) states that “a tribe which has been recognized in one of these manners may
not be terminated except by an Act of Congress.” Id. § 103(4). Therefore, the BIA’s
2005 termination of the Eastern Pequot tribe from the acknowledgment list would be
in direct violation of this statute absent “an Act of Congress.” Id.
127. See, e.g., New York v. Shinnecock Indian Nation, 400 F. Supp. 2d 486, 497-98
(E.D.N.Y. 2005).
2012] AMERICAN INDIAN SOVEREIGNTY 491
for acknowledgment purposes.128 Furthermore, the BIA has “refused
to list tribes following court rulings on their status,” even if a court
has recognized their existence.129
A. The Montoya Decision
In 1901, the Supreme Court established common law criteria for
determining the existence of an American Indian tribe. In Montoya v.
United States, the plaintiff petitioned the United States and the
Mescalero Apache Indians to recover the value of stolen livestock
that were allegedly taken by a band of Mescalero Apache Indians.130
To establish jurisdiction in the Court of Claims, the plaintiff had to
satisfy a showing that the thieves “belong[ed] to any band, tribe, or
nation in amity with the United States.”131
The Court of Claims determined, and the Supreme Court
affirmed, that this group operated in a separate and distinct manner
from the peaceful Mescalero Apache Indians, who were considered
“in amity with the United States” government—the equivalent of
federal acknowledgment today.132 Though members of the tribe had
once belonged to the Mescalero, they “carr[ied] on a war against the
government as an independent organization.”133 Interpreting the
Indian Depredation Claims Act under which the claim was based, the
Supreme Court defined the meaning of the word “tribe” as “a body of
Indians of the same or a similar race, united in a community under
one leadership or government, and inhabiting a particular though
sometimes ill-defined territory.”134 The Supreme Court presented this
definition as its general understanding of the word “tribe” and did
not indicate that the characterization was limited to this particular
act.135
This opinion is significant to tribal sovereignty136 in two ways.
128. See, e.g., W. Shoshone Bus. Council v. Babbitt, 1 F.3d 1052, 1056-57 (10th Cir.
1993).
129. REVEREND JOHN NORWOOD, DELEGATE’S REPORT ON THE NATIONAL CONGRESS
OF AMERICAN INDIANS: 2011 MID-WINTER EXECUTIVE SESSION 1 (2011).
130. 180 U.S. 261 (1901).
131. Id. at 264 (quoting Indian Depredation Claims Act, ch. 538, 26 Stat. 851
(1891)).
132. Id. at 268-69.
133. Id. at 270.
134. Id. at 266.
135. See id.
136. While the Montoya decision provided the definition of the word “tribe,” the
Court was hesitant to classify American Indian tribes as “nations.” Id. at 265. The
Court defined “nation” to “impl[y] an independence of any other sovereign power more
or less absolute, an organized government, recognized officials, a system of laws,
definite boundaries, and the power to enter into negotiations with other nations.” Id.
Because of the “natural infirmities of the Indian character, their fiery tempers,
impatience of restraint, their mutual jealousies and animosities, their nomadic habits,
492 RUTGERS LAW REVIEW [Vol. 64:2
First, it established that tribes were sovereign from each other—one
tribe would not be held responsible for the acts of another, even if
members of both entities had once belonged to the same American
Indian nation or bloodline.137 Second, and perhaps most important,
the Court created precedent that would determine how courts could
recognize the existence of a tribe.138
B. Montoya in Action
Before the BIA finalized the FAP in 1978, courts used the
Montoya definition as the standard for determining whether a group
constituted a tribe. In United States v. Candelaria, the Supreme
Court used the Montoya test to interpret a provision of the federal
Indian Trade and Intercourse Act,139 which voided transfers of land
“from any Indian nation or tribe of Indians” unless approved by
Congress.140 The Court found that the Pueblo Indians were “plainly
within” the “spirit” of the Act because they were “Indians in race,
customs, and domestic government, always have lived in isolated
communities, and [were] a simple, uninformed people, ill-prepared to
cope with the intelligence and greed of other races.”141 The Court was
able to make this factual finding on its own, without deferring to the
BIA or Department of the Interior,142 which had been established for
and lack of mental training,” the Court reasoned that the word “nation” was nothing
more than a “misnomer” when applied to “uncivilized Indians.” Id.
137. Id. at 270.
138. See, e.g., United States v. Candelaria, 271 U.S. 432, 442 (1926); Mashpee Tribe
v. New Seabury Corp., 592 F.2d 575, 582 (1st Cir. 1979); Joint Tribal Council of the
Passamaquoddy Tribe v. Morton, 528 F.2d 370, 378 (1st Cir. 1975).
139. 25 U.S.C. § 177 (2006).
140. Candelaria, 271 U.S. at 441 (quoting 25 U.S.C. § 177).
141. Id. at 441-42. The Supreme Court did not always believe that the “simple,
uninformed” Pueblos were within the “spirit” of the “intercourse Act.” See
Passamaquoddy Tribe, 528 F.2d at 378. In an earlier decision, the Court held that the
Pueblo were not Indians under the Trade and Intercourse Act because they were too
“civilized.” United States v. Joseph, 94 U.S. 614, 617 (1876). The Candelaria decision
did not overrule the Joseph decision, allowing the notion that “civilized” tribes were
exempt from the Intercourse Act to remain as good law. See Candelaria, 271 U.S. at
440-42; Passamaquoddy Tribe, 528 F.2d at 378 (noting that the Candelaria Court “did
not expressly overrule the Joseph view” but rather suggested that the Act was limited
to “simple, uninformed people”).
142. Contra Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 56 (2d
Cir. 1994) (concluding that a judicial decision should be withheld “until [the BIA] has
made an administrative ruling”); James v. U.S. Dep’t of Health & Human Servs., 824
F.2d 1132, 1138-39 (D.C. Cir. 1987) (refusing to decide whether the evidence of
historical recognition presented by an American Indian group supported their claim of
tribal legitimacy because Congress had permitted the executive branch to regulate
Indian affairs); W. Shoshone Bus. Council v. Babbitt, 1 F.3d 1052, 1057 (10th Cir.
1993) (declaring that they were “strongly persuaded by” the James case in determining
that the court must defer to a decision of the BIA to settle recognition claims).
2012] AMERICAN INDIAN SOVEREIGNTY 493
over ninety years by the time of this decision.143 Although the
legislative act before the Candeleria Court was different than the
Indian Depredation Act considered in Montoya, the Court used the
Montoya test to find the Congressional intent of the term “Indian
tribe” as applied to the 1834 and 1851 acts.144
In 1975, the First Circuit used the Montoya decision to consider
whether the Passamaquoddy Tribe of Maine was a tribe under the
Nonintercourse Act.145 Years earlier, the tribe had petitioned the
United States Government to enter a claim on its behalf to recover
millions of acres of tribal lands lost in a treaty transfer with the
State of Maine in violation of the Act.146 The federal government,
with the advice of the Acting Solicitor of the Department of the
Interior, refused to bring the suit because the Passamaquoddies were
not a tribe recognized by the United States and, therefore, could not
fall within the protection of the Act.147 The First Circuit concluded
that “there [was] no question that the Tribe [was] a ‘distinctly Indian’
community”148 by using historical evidence of recognition by the State
of Maine,149 a history of the federal government’s contact with the
tribe,150 and a stipulation by the United States Government that the
Passamaquoddies were “a tribe in both the racial and cultural
sense.”151
Despite the fact Indian Affairs was operational for 140 years152
and had not yet recognized the Passamaquoddies, the court ruled
that the tribe “plainly fit[]”153 the Montoya common-law definition of
a tribe and was protected by this Act.154 More importantly, perhaps,
the First Circuit rejected the argument that because the
Passamaqoddy tribe had not been recognized in the past by federal
treaty or statute, it was not a tribe for the purpose of federal
143. See supra Part II.a.
144. See Candelaria, 271 U.S. at 442.
145. Passamaquoddy Tribe, 528 F.2d at 377 n.8. Though the full title of the statute
is the Indian Trade and Intercourse Acts, the acts came to be known as the
“Nonintercourse Act.” See id.
146. Id. at 372.
147. Id. at 372-73, 377.
148. Id. at 377 n.7.
149. “But the Passamaquoddies were a tribe before the nation's founding and have
to this day been dealt with as a tribal unit by the State.” Id. at 377-78. The court also
noted that “[s]ince its admission as a state, Maine has enacted approximately 350 laws
which relate specifically to the Passamaquoddy Tribe.” Id. at 374.
150. Id. at 374-75 (noting that the “government’s dealings . . . [were] few” but
providing a brief record of various requests for funding for Indian schools, agriculture,
and federal assistance programs).
151. Id. at 377 n.7.
152. See supra Part II.a.
153. Passamaquoddy, 528 F.2d at 377 n.8.
154. Id. at 379.
494 RUTGERS LAW REVIEW [Vol. 64:2
programs and statutes.155 In concluding that “the absence of specific
federal recognition in and of itself provides little basis for concluding
that the Passamaquoddies are not a ‘tribe’ within the Act,”156 the
First Circuit dispelled the widespread fallacy that courts could not
determine whether a tribe was “Indian” on their own.157
C. Deferral to the Federal Acknowledgment Process
With the creation of the FAP in 1978, the courts employed a new
strategy in dealing with determinations of tribal status.158 Rather
than applying the Montoya criteria and making decisions based on a
consideration of the historical records submitted by the tribes, the
courts deferred decisions on tribal status to the BIA under the
doctrine of “primary jurisdiction.”159 The court initially employed this
doctrine to resolve issues where “a claim is originally cognizable in
the courts, but enforcement of the claim requires, or is materially
aided by, the resolution of threshold issues, usually of a factual
nature, which are placed within the special competence of the
administrative body.”160 The Second Circuit explained that the two-
fold purpose of the primary jurisdiction doctrine was: “consistency
and uniformity in the regulation of an area which Congress has
entrusted to a federal agency; and the resolution of technical
questions of facts trough the agency’s specialized expertise, prior to
judicial consideration of the legal claims.”161
Faced with the familiar question of the status of a tribe under
the Nonintercourse Act, the Second Circuit completely ignored the
body of case law decided under Montoya162 and remanded the case to
the district court with directions to stall the proceedings until the
155. Id. at 378.
156. Id.
157. See FELIX S. COHEN, HANDBOOK OF FEDERAL INDIAN LAW 268-72 (1971)
(discussing cases that addressed “[q]uestions of tribal existence”).
158. Some would argue that before 1978, the Court had already decided that it was
Congress’ role, and not that of the courts, to determine the legitimacy of an American
Indian Tribe:
[I]t is not meant . . . that Congress may bring a community or body of people
within the range of this power by arbitrarily calling them an Indian tribe,
but only that in respect of distinctly Indian communities the questions
whether, to what extent, and for what time they shall be recognized and
dealt with as dependent tribes . . . are to be determined by Congress, and not
by the courts.
United States v. Sandoval, 231 U.S. 28, 46 (1913).
159. Golden Hill Paugussett Tribe of Indians v. Weicker, 39 F.3d 51, 58-61 (2d Cir.
1994).
160. Id. at 58-59.
161. Id. at 59.
162. Cherokee Nation of Okla. v. Babbitt, 117 F.3d 1489, 1499-1503 (D.C. Cir. 1977)
(holding that “the court must itself decide whether the [tribe] constitute[s] a sovereign
tribe”).
2012] AMERICAN INDIAN SOVEREIGNTY 495
BIA reached a decision on the tribe’s recognition claim.163 The court
recognized the Montoya-Candelaria definition of tribal status and
mentioned how this definition and “BIA criteria both have
anthropological, political, geographical and cultural bases and
require, at a minimum, a community with a political structure.”164
Though the two definitions may “overlap,” the court acknowledged
that they could lead to different conclusions.165 The Second Circuit
affirmed that the federal courts “retain[] final authority to rule on a
federal statute,” but it felt that the court “should avail itself of the
agency’s aid in gathering facts and marshalling them into a
meaningful pattern.”166 Finally, the court decided, without precedent,
that “deferral [to the BIA] is fully warranted here where [a] plaintiff
has already invoked the BIA’s authority.”167
Oftentimes, judicial deference to the BIA is a disservice to both
the tribes and the other parties involved in litigation. Concerned that
“[i]nnocent landowners” may suffer a “cloud on their titles” for up to
two years while the BIA determined the federal recognition status of
the Golden Hill tribe,168 the Second Circuit ruled that the Golden Hill
Tribe could “reapply to the trial court for a ruling on the merits, if
within 18 months the BIA [had] not then ruled on [their] tribal
status.”169 With this ruling, the Second Circuit showed that courts
could make a federal acknowledgment decision on the merits, if they
felt compelled to do so.170
In Connecticut, the district court brushed aside the notion that
administrative delay should prevent deference to the BIA and placed
a stay on a lawsuit brought by the Schagticoke Tribe until a
determination on its status could be made.171 One year later, after a
163. Golden Hill, 39 F.3d at 61.
164. Id. at 59.
165. Id.
166. Id. at 60.
167. Id. The court left open the question of deferral “if no recognition application
were pending.” Id. In 2009, a district court in New York applied the Montoya common
law criteria to hold that a tribe that had not been federally recognized could assert
sovereign immunity to dismiss a lawsuit. Gristede's Foods, Inc. v. Unkechuage Nation,
660 F. Supp. 2d 442, 467 (E.D.N.Y. 2009). But see W. Shoshone Bus. Council v.
Babbitt, 1 F.3d 1052, 1056-58 (10th Cir. 1993) (deferring to the BIA administrative
process for a determination of the tribal status of the Western Shoshone Tribe for
purposes of the Nonintercourse Act when the Western Shoshone have not pursued the
FAP).
168. Golden Hill, 39 F.3d at 60. It is humorous to note that the court is more
concerned about the effect that the unreasonable BIA delay could have on the
“[i]nnocent landowners” of Connecticut than the effect on the Golden Hill tribe, who
are depending on this federal acknowledgment decision for access to precious federal
benefits and programs, as well as their standing in this litigation. Id. at 57-60.
169. Id. at 60.
170. Id. at 61.
171. See United States v. 43.47 Acres of Land in Litchfield, 45 F. Supp. 2d 187, 194
496 RUTGERS LAW REVIEW [Vol. 64:2
hearing held by the Senate Committee on Indian Affairs revealed
that the head of the FAP expressed that the process had “broken
down and . . . admitted that the current administration would be
unable to reform it,”172 the District Court of Connecticut decided that
the BIA’s “expertise [was] outweighed by its now-demonstrated
inability to make such determinations in anything remotely
resembling a timely manner.”173 This lawsuit also featured a claim
under the Nonintercourse Acts, where the Supreme Court had once
applied the Montoya definition to determine tribal status, without
deferral to the “broken down” BIA process.174 The Tenth Circuit also
deferred on a case involving a tribe’s status under the
Nonintercourse Act, refusing to entertain precedent that predated
the FAP,175 or involved Indian groups from Hawaii and Alaska.176
Although these decisions found that tribes that were not federally
recognized could still be protected under the Act, the court dismissed
them as unpersuasive.177
The courts were hesitant to find “unreasonable delay” by the BIA
in the 1980s.178 At that time, however, applications for
(D. Conn. 1999) (stating “even [a] great delay will not prevent agency consideration
where all other factors lean heavily in favor of deference”).
172. United States v. 43.47 Acres of Land in Litchfield, 2000 U.S. Dist. LEXIS
14289, *3 (D. Conn. Sept. 11, 2000) (quoting Richard L. Velky Aff.).
173. Id.
174. See United States v. Candelaria, 271 U.S. 432, 441 (1926) (holding Congress’s
use of the term “Indian Tribe” included the Pueblo Indians despite no express
reference to the tribe specifically).
175. It refused to acknowledge Joint Tribal Council of the Passamaquoddy Tribe v.
Morton, 528 F.2d 370 (1st Cir. 1975) (Pre-Federal Acknowledgment Process), and
Mashpee Tribe v. New Seabury Corp., 592 F.2d 575, 581 (1st Cir. 1979) (“[T]he [BIA]
does not yet have prescribed procedures and has not been called on to develop special
expertise in distinguishing tribes from other groups of Indians.”).
176. See W. Shoshone Bus. Council v. Babbitt, 1 F.3d 1052, 1057 (10th Cir. 1993).
The cases involving Indian groups from Alaska and Hawaii include: Native Village of
Tyonek v. Puckett, 957 F.2d 631, 635 (9th Cir. 1992) (applying tribal status tests of
United States v. Sandoval, 231 U.S. 28, 46-47 (1913), and Montoya v. United States,
180 U.S. 261, 266 (1901), to Alaskan Native village); Native Village of Noatak v.
Hoffman, 896 F.2d 1157, 1160 (9th Cir. 1990) (recognizing Alaskan Native village
organized under the Indian Reorganization Act, 25 U.S.C. §§ 461-479, for purposes of
jurisdiction under 28 U.S.C. § 1362); Price v. Hawaii, 764 F.2d 623, 626-29 (9th Cir.
1985) (using regulations regarding acknowledgment, as well as other factors, for
guidance in determining tribal status of native Hawaiian body). While it is true that
these tribes do not participate in the same acknowledgment procedure as tribes within
the continental United States, these court decisions are still good law, and their
analysis should have some persuasive authority on dealings with indigenous people as
a whole, regardless of geography.
177. W. Shoshone Bus. Council, 1 F.3d at 1057.
178. See, e.g., James v. U.S. Dep’t of Health and Human Servs., 824 F.2d 1132, 1138
(D.C. Cir. 1987) (“[The Branch of Acknowledgment and Research] staffs two historians,
two anthropologists, and two geneological researchers and has evaluated some twenty
petitions for federal acknowledgment. It is apparent that the agency should be given
2012] AMERICAN INDIAN SOVEREIGNTY 497
acknowledgment were less than 100 pages in length, and the Branch
of Acknowledgment and Research held the burden to disprove a
tribe’s existence.179 As the burden shifted, forcing tribes to affirm
their existence beyond a reasonable doubt, and the BAR increased
the amount of required documentation for federal acknowledgment,
the petitions grew larger and the time for review grew longer as the
BIA remained perpetually understaffed.180 At present day, a federal
acknowledgment petition can be over 100,000 pages long181 and cost
over $5 million to assemble;182 the BIA estimated time for completion
of the review is 30 years.183 Applying the current set of standards,
known as the TRAC factors,184 for determining whether an agency’s
delay is reasonable, it is clear that the current state of the BIA FAP
is not “reasonable.” This conclusion can easily be reached when
considering the “nature and extent of the interests prejudiced by
delay,”185 as well as the “human health and welfare . . . at stake”186 in
the millions of dollars that tribes lose every year revising petitions,
waiting decades on acknowledgment decisions to receive federal
benefits,187 and losing lawsuits for lack of standing.
the opportunity to apply its expertise prior to judicial involvement.”).
179. Norwood Interview, supra note 1.
180. Id.
181. See Barbara N. Coen, Tribal Status Decision Making: A Federal Perspective on
Acknowledgment, 37 NEW. ENG. L. REV. 491, 495 (2003) (noting that administrative
petitions and records range from 30,000 to over 100,000 pages).
182. Norwood Interview, supra note 1.
183. Id. See also Mashpee Wampanoag Tribal Council, Inc. v. Norton, 336 F.3d
1094, 1100 (D.C. Cir. 2003) (referencing the “extremely complex and labor-intensive
task” for the BAR staffers).
184. The TRAC Factors are as follows:
(1) the time agencies take to make decisions must be governed by a “rule of
reason”; (2) where Congress has provided a timetable or other indication of
the speed with which it expects the agency to proceed in the enabling
statute, that statutory scheme may supply content for this rule of reason; (3)
delays that might be reasonable in the sphere of economic regulation are less
tolerable when human health and welfare are at stake; (4) the court should
consider the effect of expediting delayed action on agency activities of a
higher or competing priority; (5) the court should also take into account the
nature and extent of the interests prejudiced by delay; and (6) the court need
not “find any impropriety lurking behind agency lassitude in order to hold
that agency action is ‘unreasonably delayed.’”
Tummino v. Von Eschenbach, 427 F. Supp. 2d 212, 231 (E.D.N.Y. 2006) (emphasis
added) (citing In re Barr Labs., Inc., 930 F.2d 72, 74-75 (D.C. Cir. 1991)) (quoting
Telecommunications Research & Action Ctr. v. FCC, 750 F.2d 70, 80 (D.C. Cir. 1984))
(emphasis added).
185. Id.
186. Id.
187. Jack Campisi & William A. Starna, Why Does It Take So Long?: Federal
Recognition and the American Indian Tribes of New England, 57 N.E. ANTHROPOLOGY
1, 12 (1999).
498 RUTGERS LAW REVIEW [Vol. 64:2
D. The Revival of Montoya – The Shinnecock Breakthrough
Many courts justify their deferrals to the BIA as a means to
avoid bypassing the administrative process and allowing tribes to
frustrate the intent of Congress. However, Congress in its findings in
the 1994 List Act188 identified “a decision of a United States court”189
as one of the possible ways for a tribe to be “recognized[,]” suggesting
that the legislative branch intended for courts to have some role in
determining federally recognized tribal status.190
In 2003, the Shinnecock tribe decided that it was time to assert
its sovereignty. Officially recognized as an American Indian tribe by
the State of New York for over 200 years, yet unrecognized by the
federal government,191 the tribe decided to use its inherent
sovereignty to begin construction of a casino facility on land that it
had purchased and claimed that it had historically been within its
control.192 The State of New York declared that the tribe was
precluded from building its casino without first obtaining a permit
from the State because the Shinnecock were not a federally
recognized tribe, and because they were building on land that was
not considered a federal Indian reservation.193
Furthermore, the State claimed that the Shinnecock could not
legally apply for a permit because they were “not an Indian Tribe in
fact because they had not been recognized as such by the Bureau of
Indian Affairs,”194 even though the tribe was recognized by New York
State. Using a variety of evidential records presented by the
Shinnecock, including historic boundary disputes of the 1600s, U.S.
Census Bureau reports, state enactments with the tribe, BIA
documentation, and even the plaintiffs’ Complaint and statements in
court—referring to the Shinnecock as an Indian tribe with a
recognized “government-to-government relationship for [over] three
hundred (300) years,”195 the District Court for the Eastern District of
New York found that the Shinnecock were an Indian Tribe as a
matter of fact,196 and fell “squarely within the umbrella of . . .
188. 25 U.S.C. § 479a-1 (2006).
189. Federally Recongized Indian Tribe List Act of 1994, Pub. L. No. 103-454, 103
Stat. 4791 (1994) (codified as amended at 25 U.S.C. § 479(a) (2006)).
190. See id.
191. New York v. Shinnecock Indian Nation (Shinnecock I), 400 F. Supp. 2d 486,
487 (E.D.N.Y. 2005) (citing Provenzano Aff. Supp. Def. Mot. Summ. J. Ex. A, K, and L)
(internal abbreviation omitted).
192. Shinnecock I, 400 F. Supp. 2d at 487-88.
193. Id. at 488.
194. Id.
195. Id. at 488-89, 497 n.7 (quoting Transcript of April 26, 2004 Hearing, p. 20, lines
5-7) (internal quotation marks omitted).
196. Shinnecock I, 400 F. Supp. 2d at 495. The court mentioned an interesting
wrinkle to this case. The United States, by opting out of the lawsuit, waived its
2012] AMERICAN INDIAN SOVEREIGNTY 499
Montoya.”197 For the Shinnecock, who were state-recognized as a
tribe by New York for more than 300 years,198 but had been waiting
on their federal recognition since 1978,199 this court decision, in
conjunction with the congressional findings within the List Act, was
federal acknowledgment of their sovereign status.200 Following the
decision, the BIA refused to list the Shinnecock as a federally
recognized tribe.201
The Shinnecock sued the Department of the Interior, asserting
that the 2005 decision should allow their tribe to be listed on the
federal acknowledgment rolls under Montoya.202 Further, the tribe
presented historical evidence of recognition from the executive and
legislative branches to support its claim.203 After dispensing of
executive and legislative support,204 the court decided that the 2005
decision did little more than define the tribe at common law.205 Citing
Golden Hill, the District Court of the Eastern District of New York
held that “[a] court decision cannot accomplish federal recognition of
an Indian tribe where the BIA has not yet issued a final
determination.”206 Limiting the significance of common law
recognition to the prior decision, the court held that it “ha[d] no
binding effect on the BIA.”207 The Eastern District of New York also
rejected the argument that the congressional findings of the 1994
List Act opened the door for courts to make federal acknowledgment
decisions before BIA’s final determination.208 Conceding that
congressional findings are normally “entitled to much deference,”209
the court declared that because Congress did not include this
objection to the Shinnecock’s claim that it was an Indian tribe. Id. at 490-91. The court
felt that the United States Attorney had enough time, a period of five months, to
become familiar with the facts of the case and determined that it had no interest in its
outcome. Id. at 491. Similarly, the State of New York waived its right to claim that the
United States was an “indispensible” party in the determination of the tribe’s status
when it allowed the United States to opt out. Id.
197. Id.
198. Id. at 497 n.7.
199. Id. at 488.
200. Id. at 489.
201. Shinnecock Indian Nation v. Kempthorne (Shinnecock II), No. 06-CV-5013,
2008 U.S. Dist. LEXIS 75826, at *1 (E.D.N.Y. Sept. 30, 2008).
202. Id. at *2-3 (highlighting the four claims that the Shinnecock had against the
Department of Interior).
203. Id. at *32-35, *40-42.
204. Note that the court did not defer to the BIA in rejecting the idea that various
statutes cited by the tribe had conferred federal recognition status. Id. at *37-38.
205. Id. at *52-53.
206. Id. at *48.
207. Id. at *53.
208. Id. at *54-56.
209. Id. at *54-55 (citing Thompson v. Colorado, 278 F.3d 1020, 1033 (10th Cir.
2001)).
500 RUTGERS LAW REVIEW [Vol. 64:2
language within the text of the statute itself, Congress did not intend
to grant such a “significant substantive right”210 to “bypass the
elaborate federal recognition process through the Executive Branch
that had existed for years, pursuant to federal regulations.”211
In making this determination, Judge Bianco completely ignored
precedent where the courts have made determinations without the
BIA,212 as well as evidence presented by the tribe containing
statements by senators to establish congressional intent in making
their comments on the List Act.213 Although stripping the Shinnecock
of their 2005 federal acknowledgment victory, this decision concluded
by finding the tribe had successfully demonstrated a claim for
unreasonable delay214 and that the court may require the BIA “to
adhere to a reasonable deadline.”215 Therefore, the BIA was in a
difficult political position. If it decided not to recognize the
Shinnecock as a tribe, it would be in direct contradiction with the
Connecticut court that had previously acknowledged the group in
2005.216 The BIA finally decided to recognize the tribe in June of
2010;217 however, the agency still entertained a claim against the
Shinnecock and refused to list the group on the roll until the claim
was resolved in November.218
IV. THE NANTICOKE LENNI-LENAPE TRIBAL NATION
A. Brief History
The Nanticoke Lenni-Lenape Tribal Nation is an American
Indian tribe comprised of members who descended from two separate
210. Id. at *55.
211. Id. at *56.
212. See supra Part III.A.
213. Shinnecock II, 2008 U.S. Dist. LEXIS 75826, at *56.
214. Id. at *77. The Shinnecock had originally petitioned the BIA in 1978, the first
year in which the FAP was introduced. See New York v. Shinnecock Indian Nation,
400 F. Supp. 2d 486, 488 (E.D.N.Y. 2005). After some reviewing and revising of its
petition, the Shinnecock claimed that its petition had not been processed further for
ten years until this decision. Shinnecock II, 2008 U.S. Dist. LEXIS 75826, at *76.
When asked, the BIA told the Shinnecock that their acknowledgment would not be
completed until 2014, and it even refused to “bind itself to that time limit.” Id. In
short, regardless of the district court’s determination, review, and ruling in 2005 that
the Shinnecock is a tribe within the meaning of the common law, it would still take the
BIA another six years to make that conclusion. Id.
215. Id. at *78 n.20.
216. This contradiction would most likely be ignored, based on Judge Bianco’s 2008
decision in Shinnecock II.
217. News Release, Office of the Assistant Sec’y-Indian Affairs, U.S. Dep’t of the
Interior, Skibine Issues a Final Determination to Acknowledge the Shinnecock Indian
Nation of Long Island, NY (June 15, 2010), available at
http://www.bia.gov/idc/groups/public/documents/text/idc009847.pdf.
218. Norwood Interview, supra note 1.
2012] AMERICAN INDIAN SOVEREIGNTY 501
groups, the Nanticoke and the Lenni-Lenape.219 The Nanticoke,
called the “tidewater people,” established territory in Delaware and
Maryland, “along the eastern shore of the Chesapeake Bay.”220 The
Lenni-Lenape were considered the “grandfathers” or “ancient ones”
by other tribes and made their homeland “from southeastern New
York through northeastern Delaware,” claiming land across New
Jersey and much of eastern Pennsylvania.221 The tribe traces its
heritage through historical records reaching as far as the 1600s,222
sharing its “homeland with the Swedes and Finns, Dutch and
British.”223
In the 1740s, due to increasing encroachments on tribal life,
many Nanticoke and Lenni-Lenape migrated from the East Coast
westward into Oklahoma.224 Some members of the tribe joined the
French in the French and Indian War, and out of fear that the
Lenape within New Jersey would join their brethren on the
battlefield, the State of New Jersey offered a piece of land as a
reservation in exchange for Lenape claims to land in the state.225
Founded in 1758,226 “Brotherton” reservation, the first and only
reservation in New Jersey,227 allowed the State to keep an eye on the
Lenape during the war and promised the Lenape safety from
219. Our Tribal History, THE NANTICOKE LENNI-LENAPE: AN AMERICAN INDIAN
TRIBE, http://www.nanticoke-lenape.info/history.htm (last visited Apr. 9, 2012).
220. The Ancient Ones, NANTICOKE AND LENAPE CONFEDERATION LEARNING CTR.
AND MUSEUM (May 4, 2010), http://nanticokelenapemuseum.org/museum/the-ancient-
ones/.
221. Id.
222. For a comprehensive timeline of the history of the Nanticoke Lenni-Lenape,
see REV. DR. JOHN R. NORWOOD, WE ARE STILL HERE! THE TRIBAL SAGA OF NEW
JERSEY’S NANTICOKE AND LENAPE INDIANS 35-53 (2007), available at
http://www.nanticoke-lenape.info/images/We_Are_Still_Here_Nanticoke_and_Lenape_
History_Booklet_pre-release_v2.pdf [hereinafter WE ARE STILL HERE!].
223. About Us, NANTICOKE LENNI-LENAPE TRIBAL NATION, http://nanticoke-
lenapetribalnation.org/about/ (last visited Feb. 26, 2012).
224. See, e.g., The Keepers of the Land, NANTICOKE AND LENAPE CONFEDERATION
LEARNING CTR. AND MUSEUM (May 4, 2010), http://nanticokelenapemuseum.org/
museum/the-keepers-of-the-land/ (providing map that depicts the direction of Lenape
migration towards Oklahoma); WE ARE STILL HERE!, supra note 222, at 37.
225. Unalachtigo Band of the Nanticoke Lenni Lenape Nation v. Corzine, 606 F.3d
126, 127 (3d Cir. 2010). Note—the tribe that serves as plaintiff in this case has no
affiliation with the Nanticoke Lenni-Lenape Tribal Nation; however, the historical
record developed by the court in this case is accurate to the tribe’s history. See
Unalachtigo Band of the Nanticoke-Lenni Lenape Nation v. State, 867 A.2d 1222, 1225
n.3 (N.J. Super. Ct. App. Div. 2005) (noting that this band had been sued by the
Nanticoke Lenni-Lenape Indians of New Jersey (precursor title to “Tribal Nation”) for
“damage to the reputation and good will” of the tribe).
226. Corzine, 606 F.3d at 127; WE ARE STILL HERE!, supra note 222, at 13.
227. Mission & Tribal History, BROTHERTON DEL. NATION OF INDIANS,
http://brotherton-delaware.us/missiontribalhistory.html (last visited Apr. 9, 2012).
502 RUTGERS LAW REVIEW [Vol. 64:2
colonists who often “confused” friendly Indians with combatants.228
However, because relocation to Brotherton was voluntary, many New
Jersey American Indians chose not to live there,229 with only about
100-200 members of the tribe living on the reservation.230
Remaining in their tribal homelands, just as they had in the
early 1700s, some Lenape declined an invitation231 to move westward
with the Mohican Indians on the New Stockbridge reservation when
Brotherton was ultimately abandoned232 and disbanded in 1801.233
Evidence that a portion of the Lenape chose to stay in New Jersey
and Delaware emerged from churches and schools run by the tribe in
the 1800s.234 While many Nanticoke and Lenape converted to
Christianity during this period, the groups retained their tribal
spiritual values and control over their communities through tribal
congregations.235 Surviving the “Termination Era”236 of the early
1900s,237 the tribe began to open up to the public during the 1960s
228. See DAVID J. SILVERMAN, RED BRETHREN: THE BROTHERTOWN AND
STOCKBRIDGE INDIANS AND THE PROBLEM OF RACE IN EARLY AMERICA 77 (2010)
(highlighting that the Brotherton Reservation was formed in order to prevent attacks
from Delaware Indians in Pennsylvania on New Jersey colonials as well as to protect
the Lenapes who were interested in remaining in New Jersey).
229. WE ARE STILL HERE!, supra note 222 at 13 (mentioning that many of the
Lenape families refused to live within the boundaries of the Brotherton reservation).
230. Nanticoke-Lenni Lenape Nation, 867 A.2d at 1224.
231. WE ARE STILL HERE!, supra note 222, at 13.
232. Unalachtigo Band of the Nanticoke Lenni Lenape Nation v. Corzine, 606 F.3d
126, 127 (3d Cir. 2010) (noting that at the close of the French and Indian War, “New
Jersey grew less concerned about the welfare of the Brotherton Indians. Government
financial assistance was withdrawn, and in 1801 the poverty-stricken tribe asked the
State of New Jersey to sell its reservation”).
233. Id.
234. Hidden in Plain Sight, NANTICOKE AND LENAPE CONFEDERATION LEARNING
CTR. AND MUSEUM (May 4, 2010), http://nanticokelenapemuseum.org/museum/hidden-
in-plain-sight/.
235. In an 1892 article published in a Philadelphia newspaper, a tribal elder of Kent
County, Delaware, explained how Nanticoke churches were managed:
We have our own church buildings and government . . . . Others may come as
often as they choose and are quite welcome and a good many do come, but no
strangers are admitted to membership or can have any voice in the
management. A number of years ago the Methodist Conference succeeded in
taking one of our churches from us, down in Sussex, but our people
immediately built another for themselves and connected themselves with the
Methodist Protestants. That is why we want no strangers to join our church
here; that occurrence was a lesson to us.
Id. (quoting John Sanders, Kent County’s Moors, TIMES OF PHILADELPHIA, May 19,
1892, available at http://nativeamericansofdelawarestate.com/MoorsOfDelaware/
moor4.html).
236. Termination Era refers to a period when the federal government attempted to
terminate its obligations to American Indian tribes. Termination Era 1950s, supra
note 38.
237. WILLIAM H. GILBERT JR., SURVIVING INDIAN GROUPS OF THE EASTERN UNITED
2012] AMERICAN INDIAN SOVEREIGNTY 503
and 1970s,238 electing a tribal government that functioned outside its
traditional “family-clan style” churches.239
Today, the Nanticoke Lenni-Lenape, headquartered in
Bridgeton, New Jersey, is governed by a tribal government consisting
of “executive, legislative, and judicial branches.”240 The tribe asserts
that it “is a sovereign American Indian Nation” consisting of
“enrolled tribal citizens who have met the mandatory documented
descent and blood quantum requirements from the historic core
tribal families as set by tribal law.”241 In Article I, Section 3 of the
Nanticoke Lenni-Lenape Constitution, the tribe is very clear that
though the BIA has not yet recognized the group for the federal rolls,
its “tribal sovereignty was granted by the almighty Creator to [its]
ancestors, was never surrendered by [its] tribal leadership to any
other authority, and has continued from ancient times to the
present.”242 The tribe declares that it “shall exercise such authority
as is inherent in any sovereign American Indian Nation.”243
The Nanticoke Lenni-Lenape began its pursuit for federal
acknowledgment in 1982,244 predating the enactment of the Indian
Gaming Regulatory Act by six years.245 The tribe was recognized by
the State of New Jersey through a state statute and a state senate
resolution that called on the United States Congress to federally
recognize the tribe.246 The Nanticoke Lenni-Lenape “is an active
STATES, ANNUAL REPORT OF THE SMITHSONIAN INSTITUTE 415-16 (1948) (noting the
names of American Indian families in a report for the Smithsonian Institute, complete
with a map of where each tribal group resided).
238. “Prior to the 1970s, we survived by keeping to ourselves. Not being a target.”
Norwood Interview, supra note 1.
239. About Us, NANTICOKE LENNI-LENAPE TRIBAL NATION, http://nanticoke-
lenapetribalnation.org/about/ (last visited Apr. 9, 2012).
240. Id.
241. WE ARE STILL HERE!, supra note 222, at 7. Blood quantum standard is
currently set at one-quarter. See Tribal Citizenship, NANTICOKE LENNI-LENAPE TRIBAL
NATION, http://nanticoke-lenapetribalnation.org/tribal-council/tribal-citizenship/ (last
visited Apr. 9, 2012) (discussing the membership standards used by the Nanticoke
Lenni-Lenape).
242. Our Constitution, NANTICOKE LENNI-LENAPE TRIBAL NATION, http://nanticoke-
lenapetribalnation.org/tribal-council/our-constitution/ (last visited Apr. 9, 2012).
243. Id.
244. Norwood Interview, supra note 1.
245. Indian Gaming Regulatory Act, 25 U.S.C. § 2710 (2006). Opponents to federally
acknowledged tribes often claim that the only goal for a tribe seeking acknowledgment
is the benefits granted by the IGRA. See Native American Gaming, NAT’L GAMBLING
IMPACT STUDY COMM’N, http://govinfo.library.unt.edu/ngisc/research/nagaming.html
(last visited Apr. 9, 2012) (mentioning that opponents of IGRA think it is a means to
increase state and federal government presence in the reservation).
246. See WE ARE STILL HERE!, supra note 222, at 18-19; We Are a Tribal
Community, NANTICOKE LENNI-LENAPE AN AMERICAN TRIBE, http://www.nanticoke-
lenape.info/community.htm (last visited Apr. 9, 2012).
504 RUTGERS LAW REVIEW [Vol. 64:2
voting member of the Confederation of Sovereign Nentego-Lenape
Tribes, the National Congress of American Indians, and the New
Jersey State Commission on American Indian Affairs.”247 Though not
recognized by the BIA, officials from the tribe “have had audience at
the White House, with foreign dignitaries and royalty, led in the
ceremonial opening of the Embassy of Sweden, and have been the
special guests of the President of the General Assembly of the United
Nations.”248 Recently, the tribe formed an intertribal union with the
Lenape Indian Tribe of Delaware to “promot[e] tribal interests,
preserv[e] tribal culture, and protect[] tribal sovereignty.”249
B. Challenges Facing the Nanticoke Lenni-Lenape Today
As part of preserving its petition for federal acknowledgment,
the biggest struggle for the Nanticoke Lenni-Lenape is maintaining
tribalism.250 In its early history, members of the tribe intermarried
among different native communities and remained close in
geography.251 Today, many members are spreading farther apart,
providing a challenge to the continuity of the tribe.252 As part of its
initiative to satisfy the BIA criteria for historical documentation, the
Nanticoke Lenni-Lenape is working to preserve its tribal history
through intertribal education programs, as well as an online
museum253 with member-only areas to teach language and spiritual
beliefs.254 The tribe conducts annual gatherings for its members on
tribal lands and a public “Pow-Wow” cultural display open to the
public to educate others on tribal customs.255 Many eastern tribes are
not surrounded by populations that are familiar with American
Indian groups, and the Nanticoke Lenni-Lenape believe that
interacting with its community is essential to dispel ongoing
247. WE ARE STILL HERE!, supra note 222, at 20.
248. Id.; Native Pride, NANTICOKE AND LENAPE CONFEDERATION LEARNING CTR.
AND MUSEUM (Apr. 11, 2010), http://nanticokelenapemuseum.org/museum/418/native-
pride/.
249. Native Pride, NANTICOKE LENNI-LENAPE CONFEDERATION LEARNING CTR. AND
MUSEUM (Apr. 11, 2010), http://nanticokelenapemuseum.org/museum/418/native-
pride/.
250. Norwood Interview, supra note 1.
251. Id. The majority of these marriages were between the three interrelated Native
communities of Nanticoke and Lenape found in New Jersey and Delaware—Bridgeton,
New Jersey; Cheswolde, Delaware; and Millsboro, Delaware. Id.
252. Id.
253. NANTICOKE AND LENAPE CONFEDERATION LEARNING CTR. AND MUSEUM,
http://nanticokelenapemuseum.org (last visited Apr. 9, 2012).
254. Norwood Interview, supra note 1.
255. Tribal Calendar, NANTICOKE LENNI-LENAPE TRIBAL NATION, http://nanticoke-
lenapetribalnation.org/tribal-calendar-2/ (last visited Apr. 9, 2012) (click on
“Gathering” and “Pow Wow” hyperlinks on the right-hand side, below “Tribal
Calendar”).
2012] AMERICAN INDIAN SOVEREIGNTY 505
stereotypes and fears.256
Other challenges for the tribe include environmental
preservation initiatives and defending the Lenape name against
copycat organizations. From 2001 to 2005, the Nanticoke Lenni-
Lenape led a successful campaign to preserve Black Creek, the site of
a former Lenape village located in Vernon, New Jersey.257 Incidents
involving copycat groups included a tribal “band,” unrecognized and
separate from the Nanticoke Lenni-Lenape, which opened an office
on the same street as the current Nanticoke Lenni-Lenape cultural
center.258 Because the band also called itself “Nanticoke Lenni-
Lenape,” local banks, the U.S. Postal Service, and many patrons
misidentified the two groups, assuming they were the same.259 After
complaints by the original tribe, the band changed its name to
“Unalachtigo Band of the Nanticoke Lenni Lenape Nation” and has
been trying to assert land claims over the former Brotherton
reservation property since 2005.260
Since the Unalachtigo litigation began, many tribes have tried to
raise Brotherton claims—each with a different background, trying to
dispel the other claimants, while calling themselves “Lenape.”261 The
Nanticoke Lenni-Lenape tribe fears that these copycat groups raising
frivolous land claims could cause confusion and backlash against its
tribe by the BIA, the State of New Jersey, the federal government, or
the general public. The Nanticoke Lenni-Lenape have asserted that
they have no connection to these groups and will continue to assert
their tribal independence.262
Further, the tribe fears that its proximity to Atlantic City, New
Jersey, would draw more detractors toward its federal recognition
petition as a result of the Indian Gaming Regulatory Act.263 Because
the tribe decided that casino gaming is against tribal values and that
to show receiving federal recognition is more important to the tribe
than building a casino, the Nanticoke Lenni-Lenape passed a tribal
256. Norwood Interview, supra note 1.
257. WE ARE STILL HERE!, supra note 222, at 20.
258. Interview with Harry Jackson, Jr., Nanticoke Lenni-Lenape Tribal
Councilman, in Bridgeton, N.J. (Mar. 16, 2011).
259. Id.
260. See Unalachtigo Band of the Nanticoke-Lenni Lenape Nation v. State, 867
A.2d 1222, 1223-24 (N.J. Super. Ct. App. Div. 2005).
261. See, e.g., id.; N.J. Sand Hill Band of Lenape & Cherokee Indians v. Corzine, CA
No. 09-683(KSG), 2010 WL 2674565, at *1-4 (D.N.J. June 30, 2010).
262. Non-Gaming Policy, NANTICOKE LENNI-LENAPE TRIBAL NATION,
http://nanticoke-lenapetribalnation.org/about/non-gaming-policy/ (last visited Apr. 9,
2012).
263. Indian Gaming Regulatory Act, 25 U.S.C. § 2710 (2006). This fear is based on
other tribes that have had their entire federal recognition decisions derailed or denied
because of plans to pursue casino gambling. See supra text accompanying notes 9-10.
506 RUTGERS LAW REVIEW [Vol. 64:2
ban on gambling264 and offered to enter into a compact with the State
of New Jersey to affirm that it would not pursue gaming ventures in
the future.265 The tribe is still awaiting a response from the State.266
C. Applying the Montoya Standard to the Nanticoke Lenni-
Lenape
At common law, the Montoya standard defined a tribe as “a body
of Indians of the same or a similar race, united in a community under
one leadership or government, and inhabiting a particular though
sometimes ill-defined territory.”267 By applying this test to the
Nanticoke Lenni-Lenape, one could see that it is clearly a tribe under
common law. With its wealth of historical documentation showing its
existence in the Southern New Jersey/Delaware region from the
1600s to present day,268 the Nanticoke and Lenape have maintained
a distinct race, traceable through its core families.269 Transitioning
from “family-clans” to a written constitution in the 1970s, the tribe’s
style of self-governance remained in place to keep the tribe together
during the “Termination Era.”270 Documentation also shows that
despite multiple westward migrations by relatives within the tribe
and invitations to join other tribes, the Nanticoke Lenni-Lenape
retained sovereign and independent status and remained settled in
the Delaware Valley and surrounding regions.271 Therefore, it is easy
to see that the Nanticoke Lenni-Lenape “plainly fits” within the
common law Montoya criteria of a tribe.272
Establishing that the Nanticoke Lenni-Lenape is a recognized
tribe under federal common law opens the door for the tribe to assert
its tribal sovereign immunity in court. In recent cases, courts have
held that groups may enjoy their sovereign immunity if “[they] ha[ve]
been federally recognized by Congress or the BIA,” or if they meet the
Montoya standard.273 In Gristede’s Foods, Inc. v. Unkechauge Nation,
264. See Non-Gaming Policy, supra note 262.
265. Norwood Interview, supra note 1.
266. Id.
267. Montoya v. United States, 180 U.S. 261, 266 (1901).
268. See supra Part IV.A.
269. The history of the Nanticoke Lenni-Lenape is littered with documentation
describing contact with researchers, white settlers, and the government of New Jersey.
See generally WE ARE STILL HERE!, supra note 222, at 35-53 (providing an overview of
tribal history).
270. See About Us, supra note 223.
271. Aside from being known as the “grandfathers” and “ancient ones,” the Lenni-
Lenape tribe members have also established a reputation for stubbornness. See
Interview with Harry Jackson Jr., supra note 258.
272. See Joint Tribal Council of Passamaquoddy Tribe v. Morton, 528 F.2d 370, 377
n.8 (1st Cir. 1975).
273. Gristede's Foods, Inc. v. Unkechuage Nation, 660 F. Supp. 2d 442, 465
(E.D.N.Y. 2009); see also United States v. Sandoval, 231 U.S. 28, 47 (1913) (discussing
2012] AMERICAN INDIAN SOVEREIGNTY 507
the court held that a tribe could assert its sovereign immunity from a
lawsuit if it meets the Montoya criteria.274 Though the tribe had not
been federally recognized and was not actively pursuing the FAP, the
court stated that it would determine issues of tribal status “when
necessary to decide an issue presented in the litigation.”275 Although
the holding of the case may be limited to tribes that have yet to
undergo the FAP, the Eastern District of New York was willing to
make a determination on tribal status in light of the judicial history
of deferral to the BIA. This decision could encourage tribes to assert
their inherent sovereignty with or without BIA recognition.
Gristede’s Foods contained an interesting observation about the
Montoya test. The court criticized applying a test to determine the
existence of a sovereign entity when the members of that sovereign
entity did not create the test.276 The Nanticoke Lenni-Lenape provide
their own definition for the term “tribe” adopting some of the
language of the Montoya test: “A continuous community of
interrelated descendants of a historic American Indian Tribe or
tribes that has maintained internal governance and tribal identity in
some manner that can be documented from at least the 19th century
or earlier.”277 Using its definition, the Nanticoke Lenni-Lenape would
also “plainly fit” within the definition of an American Indian tribe.
V. IMPROVING THE CURRENT FEDERAL ACKNOWLEDGMENT PROCESS
During the 2010 Annual Conference of the National Congress of
American Indians (“NCAI”), the BIA recognized that “72% of . . .
currently recognized federal tribes could not successfully go through
the [Federal Acknowledgment] process as it is being administered
today.”278 Given the extreme barrier the FAP has become, the BIA
has reviewed proposed changes to the current process and recognized
a need to streamline the requirements.279
Beyond the difficulties posed by the BIA, state or unrecognized
the standard by which Congress may bring a body of people within the bounds of its
power); Native Vill. of Tyonek v. Puckett, 957 F.2d 631, 635 (9th Cir. 1992) (discussing
the circumstances under which an Indian community is considered a tribe and can
thus enjoy sovereign immunity).
274. Gristede's Foods, 660 F. Supp. 2d at 476-78.
275. Id. at 468.
276. Id. at 470 (noting that “[i]f an essential right of a sovereign entity is to
determine the bounds of its own citizenship, it is conceptually inconsistent for the
court to determine the group identity of that sovereign without reference to the group's
self-defined criteria”).
277. What is a Tribe?, NANTICOKE AND LENAPE CONFEDERATION LEARNING CTR.
AND MUSEUM (May 13, 2010), http://nanticokelenapemuseum.org/learning-
center/common-misconceptions/852/what-is-a-tribe/.
278. REVEREND JOHN NORWOOD, DELEGATE’S REPORT, THE NATIONAL CONGRESS OF
AMERICAN INDIANS ANNUAL CONFERENCE 1 (2010)(emphasis in original).
279. Id.
508 RUTGERS LAW REVIEW [Vol. 64:2
tribes face challenges due to a growing anti-recognition movement
led by federally recognized tribes.280 This movement encourages the
notion of “equating tribal validity with federal recognition,” which
raises the fear of “placing the issue of tribal sovereignty wholly in the
hands of the federal government instead of as an inherent
characteristic of indigenous nations.”281 Rather than stand united
with one voice, the current FAP, and specifically the limited benefits
rewarded through this process, encourages infighting among tribal
nations rather than unity and cooperation.
A. Policy Changes Currently Under Review by the BIA
During the NCAI Conference, the Assistant Secretary of the BIA
requested a dialogue with “tribes that would be directly impacted by
policy changes.”282 The policy changes under review included:
“Remov[ing] the letter of intent requirement”;283
“Eliminat[ing the] technical assistance review letters”;284
“Limit[ing] the discretion on extending the applicant review
process”;285
“Shorten[ing] the time line with specified time limits for each”
step of the process;286
“Ensur[ing] that after 60 days the [Assistant S]ecretary’s
findings become automatic”;287
Changing “the ‘proposed finding’ to a ‘finding of facts’ by the
[O]ffice of Federal [A]cknowledgement”;288
Reforming the ability of “petitioning and interested parties . . .
280. During the 2010 Annual Conference of National Congress of American Indians,
members of the Cherokee Nation of Oklahoma (a federally recognized tribe) passed out
materials denouncing the legitimacy of state-recognized tribes. Id. at 2. Though these
tribes are members of the NCAI, the Cherokee, supported by other federally
recognized factions, publically refused to accept these tribes as legitimate and tried to
use the conference as an opportunity to sway other federal tribal leaders to adopt its
beliefs. Id. These actions led to a protest by the targeted tribes to the General
Assembly during the Conference, and the General Assembly affirmed “that all member
tribes were to be protected from such harassment.” Id. Several federal tribal leaders
“verbal[ly] rebuke[d]” the antistate recognition groups, as these actions would only
hurt American Indian nations as a whole. Id. Aside from showing weakness among the
American Indian governing body, the antistate recognition effort displays the fallacy of
“equating tribal validity with federal recognition.” Id.
281. Id.
282. Id. at 1.
283. Id.
284. Id.
285. Id.
286. Id.
287. Id.
288. Id.
2012] AMERICAN INDIAN SOVEREIGNTY 509
to impact a final determination”;289
“Simplify[ing] the process for groups [that were] previously
acknowledged . . . [to have] a relationship with the federal
government and can prove that they are the same group . . . in
some documented form”;290 and
“Allow[ing] some form of reapplication for those previously
denied if they can prove that . . . the denial was unjustified.”291
Improving the FAP will be a difficult, yet necessary ordeal. The BIA
must balance strict policy guidelines with the reality that many
genuine tribes are excluded under the current system. Current policy
changes under review are a start, “but not a fix.”292
B. Recommendations to the Executive Branch and BIA
On September 13, 2007, the United Nations General Assembly
adopted the Declaration on the Rights of Indigenous Peoples.293 The
goal of the resolution was to have “a positive impact on the protection
of [indigenous] victims and, in this context, urge[] States to take all
necessary measures to implement the rights of indigenous peoples in
accordance with international human rights instruments without
discrimination.”294 A total of 144 nations voted in favor of the act, and
the United States was not one of them.295 The Declaration
condemned the historic treatment of the indigenous people at the
hands of the colonial powers.296 Many of the articles of the
Declaration expressly refute, negate, or overrule ideologies like the
“discovery doctrine” that still operate as good law in the United
States today.297
Further, it does not differentiate between tribes that are defined
by common law, the legislative branch, executive agencies, or
289. Id.
290. Id.
291. Id.
292. Id.
293. Declaration on the Rights of Indigenous Peoples, G.A. Res. 61/295, U.N. Doc.
A/RES/61/295 (Sept. 13, 2007).
294. Declaration on the Rights of Indigenous Peoples, U.N. PERMANENT FORUM ON
INDIGENOUS ISSUES (quoting U.N. OFFICE OF THE HIGH COMM’R FOR HUMAN RIGHTS,
Outcome Document of the Durban Review Conference, para. 73 (Apr. 24, 2009))
(quotation marks omitted), http://social.un.org/index/indigenousPeoples/Declaration
ontheRightsofindigenouspeoples.aspx (last visited Apr. 9, 2012).
295. Declaration on the Rights of Indigenous Peoples, supra note 294 (noting the
United States as one of four countries that voted against the Act).
296. Declaration on the Rights of Indigenous Peoples, supra note 293.
297. Id.; see, e.g., Seneca Nation of Indians v. New York, 206 F. Supp. 2d 448, 502-
03 (W.D.N.Y. 2002), aff’d, 382 F.3d 245 (2d Cir. 2004) (explaining the discovery
doctrine “forms the basis of the well-established law of Indian land tenure” and
restricts tribal authority to convey title).
510 RUTGERS LAW REVIEW [Vol. 64:2
courts.298 The Declaration simply applies to “indigenous people” as a
whole.299 Therefore, to be a signatory to this Declaration, the United
States must be prepared for the shifting responsibilities and added
protections that the Declaration would bestow upon all American
Indian tribes, federally recognized or not. As of this writing, the
President expressed interest in changing his position and signing the
Declaration, but the United States still has yet to sign.300 American
Indians continue to urge the current executive administration to sign
this Declaration and join the rest of the United Nations in
recognizing the human rights of indigenous people.
By opening itself up for revision by the National Congress of
American Indians and the Task Force of Federal Acknowledgment,
the BIA has admitted that there is a problem with the current
process and has shown a willingness to correct the problem.301 The
BIA must establish fair criteria by reducing burdens on tribes. In
recent decisions, the BIA required tribes to show documentation
proving their continual existence for every decade back into the
1800s, without gaps or reasonable inference.302 One particular case
required a tribe to produce phone records to show that the tribal
members had been calling each other regularly.303
The enormous financial burdens due to the investigative
sleuthing required to complete a BIA petition lead many tribes to
pursue casino gaming.304 If the BIA hopes to divorce American
Indians from outside investors and to dispel their reliance on the
casino industry, the process must be equitable and affordable.305
Under the current system, tribes drive themselves into bankruptcy
after hiring attorneys, researchers, anthropologists, political
298. Declaration on the Rights of Indigenous Peoples, supra note 293.
299. Id.
300. Norwood Interview, supra note 1 (noting that the Obama Administration
expressed interest in signing the Declaration in December 2010, but no decision has
yet been made).
301. See NORWOOD, supra note 278, at 1 (indicating the BIA is actively seeking
policy revisions).
302. The Shinnecock Tribe in New York faced “the Problem of the Tunnel.” The
tribe had documentation that recorded family names, tribal living area, tribal
identification, and activities leading up to 1830. From 1830 to 1860, the Shinnecock
enter “the tunnel,” and there were no records of the tribe. After 1860, the tribe’s record
trail continued with documents containing names and tribal identification that was in
congruence with the 1830s records. The BIA decided that it could not make a decision
until the Shinnecock accounted for the thirty-year “tunnel” gap. The Shinnecock spent
$2 million hiring experts, genealogists, and historians to “poke holes” in the tunnel.
After finding evidence that corroborated that the Shinnecock of 1860 were the
descendents of the 1830 group, the BIA determined that they satisfied their historical
requirements. Norwood Interview, supra note 1.
303. Id.
304. Id.
305. Id.
2012] AMERICAN INDIAN SOVEREIGNTY 511
scientists, ethnologists, historians, and genealogists to bolster their
applications.306 Tribes cannot rely on ordinary fundraising
techniques to fund petitions that cost between $5 million to $7
million dollars.307 By lowering the burden of proof to reasonable
likelihood and making inferences where applicable, the BIA would
lower these costs substantially.
The agency must acknowledge that from 1871 to 1934, there was
no recognition process for American Indian tribes. Unrecognized
tribes had no reason to keep records because there was no
foreseeable criteria of proving one’s existence. Tribes that were left
off the rolls of the Indian Reorganization Act of 1934 also had no
guidelines to follow to assert their status, as tribes were recognized
on a case-by-case basis during this era. Therefore, the BIA should
ease the burden on tribes who cannot show documentation for this
time period. The BIA should also acknowledge the “Termination Era”
and other historical periods when many American Indians stopped
keeping records and went into hiding to maintain their tribal
lifestyle. Historical data shows that some tribes were misidentified
by early census takers who labeled them as “mixed” race or
“mulatto.”308 Without the BIA to protect them, many tribes slipped
through the cracks during these periods or stopped keeping records
so they would not be made a target for relocation or dissolution.
Finally, providing counsel for a tribe, similar to a public defender,
would allow a tribe to assert its rights throughout the FAP without
turning to outside interests.
Allowing the community to halt the FAP as a “concerned party”
undermines the inherent sovereignty of American Indians. Under the
current system, any individual from the community has standing to
present a claim against a tribe, which could halt the group’s FAP
determination for years. Many tribes predate the community, and
community complaints often arise from fear of an imminent casino.
Rather than force tribes to satisfy enormous burdens to prove their
identity, the “beyond a shadow of a doubt” standard309 should be
shifted to concerned party complaints. These outside interests should
be forced to show irrefutable proof that a tribe is suspect before they
can derail a federal acknowledgement process. Also, the outside
interests should be limited to an entity with some relation to the
tribe, or an entity that does not have a vested interest or a history of
hostility. While this Note does not suggest that the BIA should
eliminate the concerned parties requirement, the agency should
reconsider the high burden stacked against the tribe under review.
306. Id.
307. Id.
308. Id.
309. Id.
512 RUTGERS LAW REVIEW [Vol. 64:2
The BIA should also adopt the unreasonable delay standard used
in federal court. If a decision has not been reached within a
reasonable time, the BIA or a court should make an administrative
decision under the common law standard set forth by Montoya. Also,
an affirmative decision by the BIA should not be refutable. Once a
tribe is federally recognized by the United States Government as
sovereign, and a government-to-government relationship is
established, the BIA should not be allowed to reopen the file and
revoke a tribe’s status as a sovereign entity.310 Finally, a tribe’s
struggle with the FAP should not have a negative impact on its
identity. The denial of a tribe under the FAP has a devastating
impact on a tribe,311 as the general public, other tribes, and courts
wrongfully equate federal acknowledgment with tribal legitimacy.
This fallacy places the inherent sovereignty of American Indians in
the hands of the United States Government and furthers the
damaging idea of tribes as “dependent/wards” of the state.
C. Recommendations to the Judiciary
With the recent decisions in Shinnecock and Gristede’s Foods,
many tribes demand to know why they cannot be federally
recognized by meeting the common law criteria of a “tribe.” The
courts raise a valid concern that opening the process to include
Montoya decisions could open the floodgates where tribes could use
the judiciary as a way of bypassing the FAP.312 Until Congress
clarifies its findings in the List Act of 1994, however, the courts must
realize that they play an equal role in federal acknowledgment
decisions, along with the BIA and the Congress. Courts are slowly
beginning to concede that deferral to the BIA is no longer a viable
option, as many have ruled that the agency commits unreasonable
delay in reaching acknowledgment determinations. These delayed
decisions show that the BIA process is broken, and courts should use
established precedent to aid tribes that have been stuck in limbo for
decades.
Decisions like Gristede’s Foods reinforce the concept that
American Indian sovereignty is not dependent on the FAP.313
However, recognizing a group as a “tribe” for purposes of sovereign
immunity, but later deferring a decision to recognize a tribe for
federal acknowledgment is unjustifiable in the eyes of American
Indians. Furthermore, for a tribe to assert its sovereign status and
receive consideration of its status by a court, American Indian groups
310. See supra Part I.
311. Following the BIA ruling reversing the decision to recognize the Eastern
Pequot tribe, the tribe grew despondent, and representatives stopped attending the
National Congress of the American Indians. Green & Hamilton, supra note 2.
312. See supra Part III.
313. See supra Part IV.C.
2012] AMERICAN INDIAN SOVEREIGNTY 513
must be sued as the defendants in every case. If a tribe asserted its
sovereignty affirmatively by bringing suit against a government
body, the tribe would likely lose its case for lack of standing. The
judiciary should recognize that under the current precedent, tribes
are encouraged to take drastic measures to assert their sovereignty,
such as clearing land for a casino as in Shinnecock,314 in order to
expedite their federal acknowledgment decision.
Every day courts make determinations based on complicated fact
patterns, applying voluminous records to established case law. Yet,
when it comes to American Indian determinations, many courts
decide that the record is too complex to make an informed decision.
The judiciary should look to the decisions that were made prior to the
formation of the FAP in 1978, and it should embrace established
precedent and congressional findings allowing courts to settle federal
acknowledgment claims. Tribes like the Nanticoke Lenni-Lenape,
who clearly fit the common law defintion of “a tribe” by Montoya but
have been waiting for federal acknowledgment since 1982, would
greatly benefit from a more active judiciary.315
Courts should also acknowledge and overturn precedent that
was established at a time when American Indians were considered
enemy combatants of the young America. Doctrines such as
Marshall’s discovery doctrine or the “political question” doctrine have
no place in current American Indian law. These harmful and
outdated policies hamper the FAP for American Indians and have
been denounced by other nations in the United Nations Declaration
on the Rights of Indigenous Peoples.
The Indian Wars have not ceased. Many tribes have taken steps
to educate themselves on the legal process and the laws of agency
delay. These tribes are working to fix an incomplete loom by
replacing broken threads in an unfinished design by streamlining the
flawed federal acknowledgment system. As these groups wait
generations for their federal acknowledgment petitions, they are also
learning how to improve the process. Through education, unification,
and determination—American Indians will continue to fight to
complete the unfinished loom.
314. See supra Part III.D.
315. See supra Part IV.A.
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